The European Community (European Union) implements a vocational training policy, which supports and supplements the action of the member states.
***
Article 150 TEC
Chapter 3 Education, vocational training and youth continues with Article 150 TEC (ex Article 127) setting out European Community (European Union) aims and activities concerning vocational training.
The attentive reader may have noticed that the Community contributes to the development of quality education in the preceding Article 149 TEC, whereas the treaty mentions a vocational training policy in Article 150 TEC.
In the field of vocational training, the aims are closely related to the original aims of the Treaty establishing the European Community (EEC), including the European Social Fund (ESF), but the difference compared to education is more of a nuance than a reality.
The vocational training activities are still to support and to supplement member states’ actions, and their responsibility is emphasised.
The current Article 150 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113:
(CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH)
Article 150 TEC
1. The Community shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Community action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 125 of the original Treaty of Lisbon (ToL) adds recommendations to the policy instruments in the field of vocational training, with the following specific amendment (OJ 17.12.2007 C 306/82):
125) In Article 150(4), the following words shall be added at the end: ‘, and the Council, on a
proposal from the Commission, shall adopt recommendations’.
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 150 TEC first became Article 150 TFEU (ToL), then renumbered Article 166 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendment, horizontal amendments and renumbering, Article 166 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121:
(TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT)
Article 166 TFEU
(ex Article 150 TEC)
1. The Union shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training.
2. Union action shall aim to:
— facilitate adaptation to industrial changes, in particular through vocational training and retraining,
— improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market,
— facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people,
— stimulate cooperation on training between educational or training establishments and firms,
— develop exchanges of information and experience on issues common to the training systems of the Member States.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of vocational training.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt measures to contribute to the achievement of the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States, and the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the field of vocational training as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summary of legislation: Education and training
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
News and links
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Lifelong learning
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
***
Leonardo da Vinci
Of these programmes, Leonardo da Vinci addresses vocational education and training. Additional information about the Leonardo da Vinci programme can be found through this web page:
http://ec.europa.eu/education/lifelong-learning-programme/doc82_en.htm
A page dedicated to Vocational education and training (VET) can be found here:
http://ec.europa.eu/education/lifelong-learning-policy/doc60_en.htm
Ralf Grahn
Tuesday, 16 December 2008
Dynamic purchasing system in EU procurement
A dynamic purchasing system is defined in Article 1.6 of the Procurement Directive 2004/18/EC:
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
Monday, 15 December 2008
European Union: Education and youth plus sport
The European Community (European Union) encourages cooperation between the member states in the areas of education and youth exchange. The Lisbon Treaty adds sport and embellishes youth.
There is no denying the importance of sport, from many angles, but lobbyists and lawyers can rejoice that the Lisbon Treaty is not content with the addition, but refers to the specific nature of sport. This is an open invitation to special pleading, of which we have already seen vigorous signs.
Although the Community (Union) powers are puny, the education sector hosts some of the most popular European mobility programmes.
***
Article 149 TEC
Chapter 3 Education, vocational training and youth starts with Article 149 TEC (ex Article 126) setting out European Community (European Union) aims and activities in the policy areas education and youth.
The current Article 149 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112–113:
CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH
Article 149 TEC
1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
2. Community action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socioeducational instructors,
— encouraging the development of distance education.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— acting by a qualified majority on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 123 of the original Treaty of Lisbon (ToL) tells us that Chapter 3 becomes the new Title XI Education, vocational training, youth and sport(OJ 17.12.2007 C 306/82):
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
123) Chapter 3 shall be renumbered TITLE XI and the words ‘AND YOUTH’ at the end of the
heading shall be replaced by ‘, YOUTH AND SPORT’.
124) Article 149 shall be amended as follows:
(a) in paragraph 1, the following subparagraph shall be inserted:
‘The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.’;
(b) in paragraph 2, fifth indent, the words ‘and encouraging the participation of young people in democratic life in Europe,’ shall be added at the end; the following shall be inserted as the last indent:
‘— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.’;
(c) in paragraph 3, the words ‘and sport’ shall be added after ‘in the field of education’;
(d) in paragraph 4, the words ‘the Council’ shall be deleted from the introductory phrase and the first indent shall begin with the words ‘the European Parliament and the Council, acting’; the second indent shall begin with the words ‘the Council, on a proposal’.
***
Convention and Constitution
European sporting issues and the European dimension in sport are the main novelties. The additions come from Article III-282 of the Treaty establishing a Constitution for Europe, word for word.
The indent on youth exchange was embellished with encouragement of the participation of young people in democratic life in Europe. Nice, to the extent there can said to be such life at European level, this addition too was taken over from Constitution Article III-282.
Like most of the ‘innovations’ of the Constitutional Treaty, these are based on the proposals of the European Convention in the draft Treaty establishing a Constitution for Europe, although the intergovernmental conference added the reference to the specific nature of sport, its structures based on voluntary activity…
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 149 TEC first became Article 149 TFEU (ToL), then renumbered Article 165 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Consolidated Lisbon Treaty
After the explicit amendments, horizontal amendments and renumbering, Article 165 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/120–121:
TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
Article 165 TFEU
(ex Article 149 TEC)
1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
2. Union action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe,
— encouraging the development of distance education,
— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the areas of education, youth and sport, as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summaries of legislation: Education
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Summaries of legislation: Youth
The Youth in Action programme 2007–2013 is presented on the following web page:
http://europa.eu/scadplus/leg/en/cha/c11080.htm
For general information about the Commission’s youth activities, you can start here:
http://ec.europa.eu/youth/index_en.htm
***
Sport
The Commission’s activities concerning sport have been targeted at specific issues like sport in education or the combat against doping, but the Lisbon Treaty would widen the scope for supporting action at European level.
You can explore the activities through the Commission’s web page:
http://ec.europa.eu/sport/index_en.htm
***
Specific nature of sport
For a first look at the specific nature of sport within the European Union, you can go to the Commission’s Scadplus web page Incorporating the specific characteristics of sport and its social functions into the implementation of common policies:
http://ec.europa.eu/youth/index_en.htm
An analysis of the issues at stake, by Dr Richard Parrish, can be found here:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wef15.htm
Given the chance, President Nicolas Sarkozy is seldom tardy in challenging the internal market and competition rules forming the backbone of the European (Economic) Community. The EurActiv article Sarkozy backs European ‘sporting exception’ (14 July 2008):
http://www.euractiv.com/en/sports/sarkozy-backs-european-sporting-exception/article-174130
The big (business) federations of sport have all been keen to explore new possibilities to tailor European legislation to their needs. Here are a few introductory greetings from UEFA, FIFA and the IOC:
http://www.uefa.com/uefa/Keytopics/kind=2048/newsId=480464.html
http://www.fifa.com/aboutfifa/federation/releases/newsid=620034.html
http://www.olympic.org/uk/news/media_centre/press_release_uk.asp?release=2358
Ralf Grahn
There is no denying the importance of sport, from many angles, but lobbyists and lawyers can rejoice that the Lisbon Treaty is not content with the addition, but refers to the specific nature of sport. This is an open invitation to special pleading, of which we have already seen vigorous signs.
Although the Community (Union) powers are puny, the education sector hosts some of the most popular European mobility programmes.
***
Article 149 TEC
Chapter 3 Education, vocational training and youth starts with Article 149 TEC (ex Article 126) setting out European Community (European Union) aims and activities in the policy areas education and youth.
The current Article 149 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112–113:
CHAPTER 3
EDUCATION, VOCATIONAL TRAINING AND YOUTH
Article 149 TEC
1. The Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
2. Community action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socioeducational instructors,
— encouraging the development of distance education.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article, the Council:
— acting in accordance with the procedure referred to in Article 251, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— acting by a qualified majority on a proposal from the Commission, shall adopt recommendations.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 123 of the original Treaty of Lisbon (ToL) tells us that Chapter 3 becomes the new Title XI Education, vocational training, youth and sport(OJ 17.12.2007 C 306/82):
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
123) Chapter 3 shall be renumbered TITLE XI and the words ‘AND YOUTH’ at the end of the
heading shall be replaced by ‘, YOUTH AND SPORT’.
124) Article 149 shall be amended as follows:
(a) in paragraph 1, the following subparagraph shall be inserted:
‘The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.’;
(b) in paragraph 2, fifth indent, the words ‘and encouraging the participation of young people in democratic life in Europe,’ shall be added at the end; the following shall be inserted as the last indent:
‘— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.’;
(c) in paragraph 3, the words ‘and sport’ shall be added after ‘in the field of education’;
(d) in paragraph 4, the words ‘the Council’ shall be deleted from the introductory phrase and the first indent shall begin with the words ‘the European Parliament and the Council, acting’; the second indent shall begin with the words ‘the Council, on a proposal’.
***
Convention and Constitution
European sporting issues and the European dimension in sport are the main novelties. The additions come from Article III-282 of the Treaty establishing a Constitution for Europe, word for word.
The indent on youth exchange was embellished with encouragement of the participation of young people in democratic life in Europe. Nice, to the extent there can said to be such life at European level, this addition too was taken over from Constitution Article III-282.
Like most of the ‘innovations’ of the Constitutional Treaty, these are based on the proposals of the European Convention in the draft Treaty establishing a Constitution for Europe, although the intergovernmental conference added the reference to the specific nature of sport, its structures based on voluntary activity…
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter 3 on education, vocational training and youth was first to become Title XI Education, vocational training, youth and sport, but renumbered Title XII in the consolidated version.
Article 149 TEC first became Article 149 TFEU (ToL), then renumbered Article 165 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/217).
***
Consolidated Lisbon Treaty
After the explicit amendments, horizontal amendments and renumbering, Article 165 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/120–121:
TITLE XII
EDUCATION, VOCATIONAL TRAINING, YOUTH AND SPORT
Article 165 TFEU
(ex Article 149 TEC)
1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.
The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
2. Union action shall be aimed at:
— developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States,
— encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,
— promoting cooperation between educational establishments,
— developing exchanges of information and experience on issues common to the education systems of the Member States,
— encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe,
— encouraging the development of distance education,
— developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
4. In order to contribute to the achievement of the objectives referred to in this Article:
— the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,
— the Council, on a proposal from the Commission, shall adopt recommendations.
***
EU competence
Having looked at the powers of the European Union in the areas of education, youth and sport, as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.
Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
***
Article 6 TFEU
The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Education, vocational training, youth and sport are mentioned among the areas, where the EU supports, coordinates or supplements member states’ actions:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Summaries of legislation: Education
On the Commission’s Scadplus web pages with summaries of legislation, there is one offering a plethora of links to different aspects of Education and training: General framework:
http://europa.eu/scadplus/leg/en/s19004.htm
Lifelong learning and the Lisbon Strategy for Growth and Jobs are common catchwords. The Lifelong learning programme 2007–2013 incorporates many of the best known activities of the European Union, such as the Comenius, Erasmus, Leonardo da Vinci, Grundtvig and Jean Monnet programmes as well as a transversal programme.
General Commission news and links concerning education and training can be found here:
http://ec.europa.eu/education/index_en.htm
***
Summaries of legislation: Youth
The Youth in Action programme 2007–2013 is presented on the following web page:
http://europa.eu/scadplus/leg/en/cha/c11080.htm
For general information about the Commission’s youth activities, you can start here:
http://ec.europa.eu/youth/index_en.htm
***
Sport
The Commission’s activities concerning sport have been targeted at specific issues like sport in education or the combat against doping, but the Lisbon Treaty would widen the scope for supporting action at European level.
You can explore the activities through the Commission’s web page:
http://ec.europa.eu/sport/index_en.htm
***
Specific nature of sport
For a first look at the specific nature of sport within the European Union, you can go to the Commission’s Scadplus web page Incorporating the specific characteristics of sport and its social functions into the implementation of common policies:
http://ec.europa.eu/youth/index_en.htm
An analysis of the issues at stake, by Dr Richard Parrish, can be found here:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62wef15.htm
Given the chance, President Nicolas Sarkozy is seldom tardy in challenging the internal market and competition rules forming the backbone of the European (Economic) Community. The EurActiv article Sarkozy backs European ‘sporting exception’ (14 July 2008):
http://www.euractiv.com/en/sports/sarkozy-backs-european-sporting-exception/article-174130
The big (business) federations of sport have all been keen to explore new possibilities to tailor European legislation to their needs. Here are a few introductory greetings from UEFA, FIFA and the IOC:
http://www.uefa.com/uefa/Keytopics/kind=2048/newsId=480464.html
http://www.fifa.com/aboutfifa/federation/releases/newsid=620034.html
http://www.olympic.org/uk/news/media_centre/press_release_uk.asp?release=2358
Ralf Grahn
EU procurement: Framework agreement
Framework agreement is one of the important terms defined at the beginning of the Procurement Directive 2004/18/EC.
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
Sunday, 14 December 2008
Regulations: European Social Fund (and Structural Funds)
The cooperation procedure is applied to implementing legislation concerning the European Social Fund (ESF).
The ESF has been incorporated into the structural funds, which means that we have to look at the Regulations common to the structural funds to know how the European Social Fund is supposed to work.
Implementing rules issued by the Commission try to keep the 2007 to 2013 projects on the actively communicative and virtuous path.
***
Article 148 TEC
The cooperation procedure is used for the implementing rules concerning the European Social Fund, according to Article 148 TEC (ex Article 125). Although the provision mentions decisions, in practice they are Regulations.
The current Article 148 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112:
Article 148 TEC
The Council, acting in accordance with the procedure referred to in Article 251 and after
consulting the Economic and Social Committee and the Committee of the Regions, shall adopt
implementing decisions relating to the European Social Fund.
***
Original Lisbon Treaty (ToL)
Article 2, point 122 of the original Treaty of Lisbon (ToL) accepts that the implementing rules based on Article 148 are given in Regulations (OJ 17.12.2007 C 306/82):
122) In Article 148, the words ‘implementing decisions’ shall be replaced by ‘implementing
regulations’.
The horizontal amendment in Article 2, point 2(c) ToL introduces the ordinary legislative procedure, which is more readable, but the cooperation procedure already applies.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 148 TEC first became Article 148 TFEU (ToL), then renumbered Article 164 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
Article 164 of the Treaty on the Functioning of the European Union (TFEU, after these modest adjustments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 164 TFEU
(ex Article 148 TEC)
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt implementing regulations relating to the European Social Fund.
***
General ESF information
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
***
Structural Funds
The information on offer about the European Social Fund centrally is somewhat superficial, although the treaty text would lead one to believe that the ESF is an autonomous system.
In practice, the ESF has been incorporated into the structural funds under the banner of cohesion.
For news and actualities, you can go to the Commission’s Inforegio web pages:
http://ec.europa.eu/regional_policy/index_en.htm
***
Programming period 2007 – 2013
For a short description of the structural funds during the programming period 2007 to 2013, the Legislation page offers links to some of the relevant Regulations, although communications issues seem to be the real obsession:
http://ec.europa.eu/regional_policy/country/commu/leg_en.cfm?nmenu=2
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Implementing Regulation No 1828/2006
For those actually working with the structural funds, the nitty-gritty is found in the implementing rules. Here, too, communicating the good works, seems to have been the main priority when writing the rules.
More exactly the implementing rules are: Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:371:0001:0163:EN:PDF
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund and Article 3 its scope of assistance.
Ralf Grahn
The ESF has been incorporated into the structural funds, which means that we have to look at the Regulations common to the structural funds to know how the European Social Fund is supposed to work.
Implementing rules issued by the Commission try to keep the 2007 to 2013 projects on the actively communicative and virtuous path.
***
Article 148 TEC
The cooperation procedure is used for the implementing rules concerning the European Social Fund, according to Article 148 TEC (ex Article 125). Although the provision mentions decisions, in practice they are Regulations.
The current Article 148 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/112:
Article 148 TEC
The Council, acting in accordance with the procedure referred to in Article 251 and after
consulting the Economic and Social Committee and the Committee of the Regions, shall adopt
implementing decisions relating to the European Social Fund.
***
Original Lisbon Treaty (ToL)
Article 2, point 122 of the original Treaty of Lisbon (ToL) accepts that the implementing rules based on Article 148 are given in Regulations (OJ 17.12.2007 C 306/82):
122) In Article 148, the words ‘implementing decisions’ shall be replaced by ‘implementing
regulations’.
The horizontal amendment in Article 2, point 2(c) ToL introduces the ordinary legislative procedure, which is more readable, but the cooperation procedure already applies.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 148 TEC first became Article 148 TFEU (ToL), then renumbered Article 164 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
Article 164 of the Treaty on the Functioning of the European Union (TFEU, after these modest adjustments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 164 TFEU
(ex Article 148 TEC)
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt implementing regulations relating to the European Social Fund.
***
General ESF information
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
***
Structural Funds
The information on offer about the European Social Fund centrally is somewhat superficial, although the treaty text would lead one to believe that the ESF is an autonomous system.
In practice, the ESF has been incorporated into the structural funds under the banner of cohesion.
For news and actualities, you can go to the Commission’s Inforegio web pages:
http://ec.europa.eu/regional_policy/index_en.htm
***
Programming period 2007 – 2013
For a short description of the structural funds during the programming period 2007 to 2013, the Legislation page offers links to some of the relevant Regulations, although communications issues seem to be the real obsession:
http://ec.europa.eu/regional_policy/country/commu/leg_en.cfm?nmenu=2
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Implementing Regulation No 1828/2006
For those actually working with the structural funds, the nitty-gritty is found in the implementing rules. Here, too, communicating the good works, seems to have been the main priority when writing the rules.
More exactly the implementing rules are: Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:371:0001:0163:EN:PDF
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund and Article 3 its scope of assistance.
Ralf Grahn
Procurement in the European Union: Service concession
How does the Procurement Directive 2004/18/EC define a service concession?
***
Service concession
Article 1.4 of the Procurement Directive 2004/18/EC defines a service concession in the following way:
4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
***
Public service contract
First we have to return to the definition of a public service contract in Article 1.2(d) to find the similarities:
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Annex II services
Annex II Services referred to in Article 1(2)(d), from page 67 in the consolidated Directive, lists the following services (with further precisions in the Annex):
1. Maintenance and repair services
2. Land transport services, including armoured car services, and courier services, except transport of mail
3. Air transport services of passengers and freight, except transport of mail
4. Transport of mail by land and by air
5. Telecommunications services
6. Financial services: (a) Insurance services; (b) Banking and investment services
7. Computer and related services
8. Research and development services
9. Accounting, auditing and bookkeeping services
10. Market research and public opinion polling services
11. Management consulting services and related services
12. Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services
13. Advertising services
14. Building-cleaning services and property management services
15. Publishing and printing services on a fee or contract basis
16. Sewage and refuse disposal services; sanitation and similar services
***
Public service concession
What makes a public service contract into a service concession is that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
The Commissions Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) explains the background and offers a broad description on page 5:
The Commission's original proposal contained provisions on public service concessions analogous to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions. Thus the Services Directive does not apply to public service concessions, which broadly means that the Directive does not apply to contracts whereby a public authority transfers the execution of a service to the public lying within its responsibility to an undertaking of its choice and the latter agrees to execute the activity in return for the right to exploit the service, or this right together with payment. Nevertheless, the award of such contracts is, of course, subject to the Treaty rules concerning the freedom to provide services and to the general principles of Community law such as non-discrimination, equality of treatment, transparency and mutual recognition.
Ralf Grahn
***
Service concession
Article 1.4 of the Procurement Directive 2004/18/EC defines a service concession in the following way:
4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
***
Public service contract
First we have to return to the definition of a public service contract in Article 1.2(d) to find the similarities:
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Annex II services
Annex II Services referred to in Article 1(2)(d), from page 67 in the consolidated Directive, lists the following services (with further precisions in the Annex):
1. Maintenance and repair services
2. Land transport services, including armoured car services, and courier services, except transport of mail
3. Air transport services of passengers and freight, except transport of mail
4. Transport of mail by land and by air
5. Telecommunications services
6. Financial services: (a) Insurance services; (b) Banking and investment services
7. Computer and related services
8. Research and development services
9. Accounting, auditing and bookkeeping services
10. Market research and public opinion polling services
11. Management consulting services and related services
12. Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services
13. Advertising services
14. Building-cleaning services and property management services
15. Publishing and printing services on a fee or contract basis
16. Sewage and refuse disposal services; sanitation and similar services
***
Public service concession
What makes a public service contract into a service concession is that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
The Commissions Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) explains the background and offers a broad description on page 5:
The Commission's original proposal contained provisions on public service concessions analogous to those existing in the Works Directive for public works concessions. However, the Member States in Council decided not to include this type of contract because of wide divergence of national practices in matters of public service concessions. Thus the Services Directive does not apply to public service concessions, which broadly means that the Directive does not apply to contracts whereby a public authority transfers the execution of a service to the public lying within its responsibility to an undertaking of its choice and the latter agrees to execute the activity in return for the right to exploit the service, or this right together with payment. Nevertheless, the award of such contracts is, of course, subject to the Treaty rules concerning the freedom to provide services and to the general principles of Community law such as non-discrimination, equality of treatment, transparency and mutual recognition.
Ralf Grahn
Saturday, 13 December 2008
EU: European Social Fund Committee
The European Social Fund (ESF) is administered by the Commission, assisted by a Committee established under Article 147 of the Treaty establishing the European Community.
We look at the treaty provision and secondary legislation regulating the structural funds, including the ESF, and provisions concerning the European Social Fund Committee or Article 147 Committee. A whiff of comitology is promised.
***
Article 147 TEC
Article 147 TEC (ex Article 124) states that the European Social Fund is administered by the Commission. In addition to participating in enacting the secondary legislation mentioned in Article 164 TEC, the EU member states keep an eye on ESF governance through a tripartite Committee.
The current Article 147 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 147 TEC
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own and point 122 concerns Article 148 (OJ 17.12.2007 C 306/82).
This means that Article 147 TEC undergoes no specific amendments. As it happens, there are no horizontal amendments either.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 147 TEC first became Article 147 TFEU (ToL), then renumbered Article 163 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article 163 of the Treaty on the Functioning of the European Union (TFEU), without specific or horizontal amendments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 163 TFEU
(ex Article 147 TEC)
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Although the Commission administers the ESF, the money from the EU budget together with national co-financing is actually spent in the member states. Detailed rules have been drawn up for the period 2007 to 2013, including the responsibilities of the Commission and the member states.
***
Structural Funds
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Article 147 Committee or European Social Fund Committee
The ESF Committee is one of the many without a proper name, but officially referred to by the Article number. Understandably many humans prefer more evocative names. Perhaps the European Social Fund Committee would be a preferable name.
Regulation No 1083/2006 sets out rules on the Committee mentioned in Article 147 TEC. During the programming period 2007–2013 the Article 147 Committee has been slimmed down to one government representative, one trade union representative and one employers’ representative per member state, although each representative has an alternate entitled to take part in the proceedings. In other words, 162 members and alternates may take part in addition to the Commission chair:
CHAPTER II
Committee under Article 147 of the treaty
Article 104
Committee under Article 147 of the Treaty
1. The Commission shall be assisted by a committee set up under Article 147 of the Treaty (hereinafter referred to as the Committee). The Committee shall be composed of one government representative, one representative of the workers' organizations and one representative of the employers' organizations from each Member State. The Member of the Commission responsible for chairing the Committee may delegate that responsibility to a senior Commission official.
2. Each Member State shall nominate a representative and an alternate for each representative of each category referred to in paragraph 1. In the absence of one member, the alternate shall be automatically entitled to take part in the proceedings.
3. The members and alternates shall be appointed by the Council, acting on a proposal from the Commission, for a period of three years. They may be reappointed. The Council shall, as regards the composition of the Committee, endeavour to ensure fair representation of the different categories concerned. For the items on the agenda affecting it, the EIB and the EIF may appoint a non-voting representative.
4. The Committee shall:
(a) deliver its opinion on the implementing rules of this Regulation;
(b) deliver opinions on the draft Commission decisions relating to programming in the case of support from the ESF;
(c) be consulted when it deals with the categories of technical assistance measure referred to in Article 45 in the case of support from the ESF and other relevant issues having an impact on the implementation of employment, training and social inclusion strategies at EU level relevant to the ESF.
5. The Commission may consult the Committee on questions other than those referred to in paragraph 4.
6. For their adoption, the opinions of the Committee shall require an absolute majority of the votes validly cast. The Commission shall inform the Committee of the manner in which it has taken account of its opinions.
***
Comitology
The ESF Committee can be seen in the light of the arcane science called comitology, i.e. the rules governing Committees assisting the Commission in implementing legislation. The Wikipedia article Comitology offers a quick overview:
http://en.wikipedia.org/wiki/Comitology
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund:
Article 2 ESF Regulation
Tasks
1. The ESF shall contribute to the priorities of the Community as regards strengthening economic and social cohesion by improving employment and job opportunities, encouraging a high level of employment and more and better jobs. It shall do so by supporting Member States' policies aiming to achieve full employment and quality and productivity at work, promote social inclusion, including the access of disadvantaged people to employment, and reduce national, regional and local employment disparities.
In particular, the ESF shall support actions in line with measures taken by Member States on the basis of the guidelines adopted under the European Employment Strategy, as incorporated into the Integrated Guidelines for Growth and Jobs, and the accompanying recommendations.
2. In carrying out the tasks referred to in paragraph 1, the ESF shall support the priorities of the Community as regards the need to reinforce social cohesion, strengthen productivity and competitiveness, and promote economic growth and sustainable development. In so doing, the ESF shall take into account the relevant priorities and objectives of the Community in the fields of education and training, increasing the participation of economically inactive people in the labour market, combating social exclusion — especially that of disadvantaged groups such as people with disabilities — and promoting equality between women and men and non-discrimination.
Ralf Grahn
We look at the treaty provision and secondary legislation regulating the structural funds, including the ESF, and provisions concerning the European Social Fund Committee or Article 147 Committee. A whiff of comitology is promised.
***
Article 147 TEC
Article 147 TEC (ex Article 124) states that the European Social Fund is administered by the Commission. In addition to participating in enacting the secondary legislation mentioned in Article 164 TEC, the EU member states keep an eye on ESF governance through a tripartite Committee.
The current Article 147 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 147 TEC
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own and point 122 concerns Article 148 (OJ 17.12.2007 C 306/82).
This means that Article 147 TEC undergoes no specific amendments. As it happens, there are no horizontal amendments either.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 147 TEC first became Article 147 TFEU (ToL), then renumbered Article 163 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article 163 of the Treaty on the Functioning of the European Union (TFEU), without specific or horizontal amendments, appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE XI
THE EUROPEAN SOCIAL FUND)
Article 163 TFEU
(ex Article 147 TEC)
The Fund shall be administered by the Commission.
The Commission shall be assisted in this task by a Committee presided over by a Member of the Commission and composed of representatives of governments, trade unions and employers' organisations.
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Although the Commission administers the ESF, the money from the EU budget together with national co-financing is actually spent in the member states. Detailed rules have been drawn up for the period 2007 to 2013, including the responsibilities of the Commission and the member states.
***
Structural Funds
As one of the structural funds, the European Social Fund is governed according to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 31.7.2006 L 210/25), available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:210:0025:0078:EN:PDF
***
Article 147 Committee or European Social Fund Committee
The ESF Committee is one of the many without a proper name, but officially referred to by the Article number. Understandably many humans prefer more evocative names. Perhaps the European Social Fund Committee would be a preferable name.
Regulation No 1083/2006 sets out rules on the Committee mentioned in Article 147 TEC. During the programming period 2007–2013 the Article 147 Committee has been slimmed down to one government representative, one trade union representative and one employers’ representative per member state, although each representative has an alternate entitled to take part in the proceedings. In other words, 162 members and alternates may take part in addition to the Commission chair:
CHAPTER II
Committee under Article 147 of the treaty
Article 104
Committee under Article 147 of the Treaty
1. The Commission shall be assisted by a committee set up under Article 147 of the Treaty (hereinafter referred to as the Committee). The Committee shall be composed of one government representative, one representative of the workers' organizations and one representative of the employers' organizations from each Member State. The Member of the Commission responsible for chairing the Committee may delegate that responsibility to a senior Commission official.
2. Each Member State shall nominate a representative and an alternate for each representative of each category referred to in paragraph 1. In the absence of one member, the alternate shall be automatically entitled to take part in the proceedings.
3. The members and alternates shall be appointed by the Council, acting on a proposal from the Commission, for a period of three years. They may be reappointed. The Council shall, as regards the composition of the Committee, endeavour to ensure fair representation of the different categories concerned. For the items on the agenda affecting it, the EIB and the EIF may appoint a non-voting representative.
4. The Committee shall:
(a) deliver its opinion on the implementing rules of this Regulation;
(b) deliver opinions on the draft Commission decisions relating to programming in the case of support from the ESF;
(c) be consulted when it deals with the categories of technical assistance measure referred to in Article 45 in the case of support from the ESF and other relevant issues having an impact on the implementation of employment, training and social inclusion strategies at EU level relevant to the ESF.
5. The Commission may consult the Committee on questions other than those referred to in paragraph 4.
6. For their adoption, the opinions of the Committee shall require an absolute majority of the votes validly cast. The Commission shall inform the Committee of the manner in which it has taken account of its opinions.
***
Comitology
The ESF Committee can be seen in the light of the arcane science called comitology, i.e. the rules governing Committees assisting the Commission in implementing legislation. The Wikipedia article Comitology offers a quick overview:
http://en.wikipedia.org/wiki/Comitology
***
ESF Regulation No 1081/2006
Rules specific to the European Social Fund are set out in a separate Regulation.
Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 on the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ 31.7.2006 L 210/12) is available here:
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_210/l_21020060731en00120018.pdf
Article 2 sets out the tasks of the European Social Fund:
Article 2 ESF Regulation
Tasks
1. The ESF shall contribute to the priorities of the Community as regards strengthening economic and social cohesion by improving employment and job opportunities, encouraging a high level of employment and more and better jobs. It shall do so by supporting Member States' policies aiming to achieve full employment and quality and productivity at work, promote social inclusion, including the access of disadvantaged people to employment, and reduce national, regional and local employment disparities.
In particular, the ESF shall support actions in line with measures taken by Member States on the basis of the guidelines adopted under the European Employment Strategy, as incorporated into the Integrated Guidelines for Growth and Jobs, and the accompanying recommendations.
2. In carrying out the tasks referred to in paragraph 1, the ESF shall support the priorities of the Community as regards the need to reinforce social cohesion, strengthen productivity and competitiveness, and promote economic growth and sustainable development. In so doing, the ESF shall take into account the relevant priorities and objectives of the Community in the fields of education and training, increasing the participation of economically inactive people in the labour market, combating social exclusion — especially that of disadvantaged groups such as people with disabilities — and promoting equality between women and men and non-discrimination.
Ralf Grahn
EU procurement: Public works concessions
We look at the definitions concerning public works concessions in the Procurement Directive 2004/18/EC.
***
Public works concession
The public works concession is defined in Article 1.3 of the Procurement Directive:
3. ‘Public works concession’ is a contract of the same type as a public works contract except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the work or in this right together with payment.
***
Works
The definition of public works contracts in Article 1.2(b) offers common ground with public works concessions:
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
***
Consideration
The public works concession differs from the public works contract in that the consideration for the works to be carried out consists either solely in the right to exploit the work or in this right together with payment.
Title III of the Procurement Directive, comprising Articles 56 to 65, sets out the rules on public works concessions, but concessions with a value of less than 5 150 000 euros remain under the threshold.
The European Commission’s Guide to Community rules on public works contracts (based on the old Directive) starts its treatment of public works concessions by stating that in view of their specific nature, public works concessions are subject only to advertising rules designed to introduce some transparency in this field. It later goes on to explain the difference in remuneration on page 61:
For the purposes of the Directive, a public works concession is the same as a public works contract, except that the consideration is usually in the form of the right to exploit the works but is sometimes pecuniary as well.
The key element in determining whether a public works contract or concession is involved is the form that the consideration takes. For the works to be classed as a concession, consideration must consist, at least in part, of the right to exploit the works, i.e. of the profit which the concessionaire, depending on his ability to manage the project, will gain from that right.
It is of little importance whether the revenue from that management is handled physically by the awarding authority or by the concessionaire; what matters is that all or part of such revenue is paid to the latter in consideration for the works.
Depending on the management terms prescribed by the awarding authority, the latter may guarantee the concessionaire a minimum income.
However, were the authority to remunerate the concessionaire with fixed - e.g. monthly or annual - sums in consideration for the works and for the management activity, without such remuneration being in any way proportional to the management revenue, the contract would not be a concession but a public works contract, the scope of which included, in addition to the execution of the works, provision of the requisite services for managing the project. In such a case, the “right to exploit the works” would no longer be meaningful since the risks and benefits associated with exploitation would in reality be retained by the contracting authority.
Ralf Grahn
***
Public works concession
The public works concession is defined in Article 1.3 of the Procurement Directive:
3. ‘Public works concession’ is a contract of the same type as a public works contract except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the work or in this right together with payment.
***
Works
The definition of public works contracts in Article 1.2(b) offers common ground with public works concessions:
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
***
Consideration
The public works concession differs from the public works contract in that the consideration for the works to be carried out consists either solely in the right to exploit the work or in this right together with payment.
Title III of the Procurement Directive, comprising Articles 56 to 65, sets out the rules on public works concessions, but concessions with a value of less than 5 150 000 euros remain under the threshold.
The European Commission’s Guide to Community rules on public works contracts (based on the old Directive) starts its treatment of public works concessions by stating that in view of their specific nature, public works concessions are subject only to advertising rules designed to introduce some transparency in this field. It later goes on to explain the difference in remuneration on page 61:
For the purposes of the Directive, a public works concession is the same as a public works contract, except that the consideration is usually in the form of the right to exploit the works but is sometimes pecuniary as well.
The key element in determining whether a public works contract or concession is involved is the form that the consideration takes. For the works to be classed as a concession, consideration must consist, at least in part, of the right to exploit the works, i.e. of the profit which the concessionaire, depending on his ability to manage the project, will gain from that right.
It is of little importance whether the revenue from that management is handled physically by the awarding authority or by the concessionaire; what matters is that all or part of such revenue is paid to the latter in consideration for the works.
Depending on the management terms prescribed by the awarding authority, the latter may guarantee the concessionaire a minimum income.
However, were the authority to remunerate the concessionaire with fixed - e.g. monthly or annual - sums in consideration for the works and for the management activity, without such remuneration being in any way proportional to the management revenue, the contract would not be a concession but a public works contract, the scope of which included, in addition to the execution of the works, provision of the requisite services for managing the project. In such a case, the “right to exploit the works” would no longer be meaningful since the risks and benefits associated with exploitation would in reality be retained by the contracting authority.
Ralf Grahn
Friday, 12 December 2008
EU: The European Social Fund
Since the 1957 Treaty establishing the European Economic Community the European Social Fund (ESF) has endeavoured to make the jobless of today into the workers of tomorrow.
***
Article 146 TEC
Article 146 TEC (ex Article 123) states the transformational aim of the European Social Fund. Located in Chapter 2 The European Social Fund, under the current Title XI Social policy, education, vocational training and youth, the main aim of the ESF is to improve employment opportunities for workers in the internal market and to contribute to raising the standard of living.
At a more concrete level, the aim of the ESF is to
– render the employment of workers easier
– increase their geographical mobility
– increase their occupational mobility
– facilitate their adaptation to industrial changes and changes in production systems.
The European Social Fund operates especially through vocational training and retraining.
These objectives bring to mind several related aims of the European Community, such as free movement of persons (in the internal market), social and territorial cohesion, employment, vocational training and since 2000 the Lisbon Strategy for Growth and Jobs.
The current Article 146 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 146 TEC
In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Community, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own (OJ 17.12.2007 C 306/82):
EUROPEAN SOCIAL FUND
121) Chapter 2 shall be renumbered TITLE X.
This means that Article 146 TEC undergoes no specific amendments. The ‘Community’ is replaced by the ‘Union’ according to the horizontal amendment mentioned in point 2(a) on page 42.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 146 TEC first became Article 146 TFEU (ToL), then to be renumbered Article 162 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article with the horizontal amendment replacing ‘Community’ by ‘Union’, Article 162 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
TITLE XI
THE EUROPEAN SOCIAL FUND
Article 162 TFEU
(ex Article 146 TEC)
In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.
***
Cohesion
The Lisbon Treaty places the European Social Fund within the context of strengthening economic, social and territorial cohesion within the European Union (Article 174 TFEU).
Article 175(1) TFEU includes the ESF among the instruments to support these aims:
Article 175 TFEU
(ex Article 159 TEC)
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 174. The formulation and implementation of the Union's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 174 and shall contribute to their achievement. The Union shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
***
ESF summary
Within the treaty framework, the European Social Fund has not only contributed to adaptation by workers, but adapted itself to evolving Community priorities. Ahead of the current programmes, from 2007, the Commission’s Scadplus web page offered the following summary of the ESF norms (latest update 2 January 2006):
http://europa.eu/scadplus/leg/en/lvb/g24232.htm
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Ralf Grahn
***
Article 146 TEC
Article 146 TEC (ex Article 123) states the transformational aim of the European Social Fund. Located in Chapter 2 The European Social Fund, under the current Title XI Social policy, education, vocational training and youth, the main aim of the ESF is to improve employment opportunities for workers in the internal market and to contribute to raising the standard of living.
At a more concrete level, the aim of the ESF is to
– render the employment of workers easier
– increase their geographical mobility
– increase their occupational mobility
– facilitate their adaptation to industrial changes and changes in production systems.
The European Social Fund operates especially through vocational training and retraining.
These objectives bring to mind several related aims of the European Community, such as free movement of persons (in the internal market), social and territorial cohesion, employment, vocational training and since 2000 the Lisbon Strategy for Growth and Jobs.
The current Article 146 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 146 TEC
In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Community, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.
***
Original Lisbon Treaty (ToL)
Article 2, point 121 of the original Treaty of Lisbon (ToL) makes Chapter 2 on the European Social Fund into a Title of its own (OJ 17.12.2007 C 306/82):
EUROPEAN SOCIAL FUND
121) Chapter 2 shall be renumbered TITLE X.
This means that Article 146 TEC undergoes no specific amendments. The ‘Community’ is replaced by the ‘Union’ according to the horizontal amendment mentioned in point 2(a) on page 42.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the Chapter on the European Social Fund was to become Title XI. Article 146 TEC first became Article 146 TFEU (ToL), then to be renumbered Article 162 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216–217).
***
Consolidated Lisbon Treaty
The renumbered Article with the horizontal amendment replacing ‘Community’ by ‘Union’, Article 162 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
TITLE XI
THE EUROPEAN SOCIAL FUND
Article 162 TFEU
(ex Article 146 TEC)
In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.
***
Cohesion
The Lisbon Treaty places the European Social Fund within the context of strengthening economic, social and territorial cohesion within the European Union (Article 174 TFEU).
Article 175(1) TFEU includes the ESF among the instruments to support these aims:
Article 175 TFEU
(ex Article 159 TEC)
Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 174. The formulation and implementation of the Union's policies and actions and the implementation of the internal market shall take into account the objectives set out in Article 174 and shall contribute to their achievement. The Union shall also support the achievement of these objectives by the action it takes through the Structural Funds (European Agricultural Guidance and Guarantee Fund, Guidance Section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing Financial Instruments.
***
ESF summary
Within the treaty framework, the European Social Fund has not only contributed to adaptation by workers, but adapted itself to evolving Community priorities. Ahead of the current programmes, from 2007, the Commission’s Scadplus web page offered the following summary of the ESF norms (latest update 2 January 2006):
http://europa.eu/scadplus/leg/en/lvb/g24232.htm
***
Commission
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities offers a portal to the European Social Fund:
http://ec.europa.eu/employment_social/esf/index_en.htm
The ESF’s role in promoting the Lisbon Strategy for Growth and Jobs is clearly emphasised.
Ralf Grahn
European Union: Public contracts
Public contracts are such stuff as public procurement is made on. Hence, we look at some of the key terms employed in defining public contracts in Article 1.2(a) of the Procurement Directive 2004/18/EC.
In writing, economic operator and contracting authority are among the concepts given definitions.
***
Definition: Public contracts
Article 1.2(a)
‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
In writing
After taking note of contracts and a pecuniary interest, we turn to the meaning of ‘in writing’. This leads us to a broad definition in Article 1.12:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
Electronic means are further explained in the following paragraph, 1.13:
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Economic operator
Economic operator is a convenient term to cover the concepts of contractor, supplier and service provider, as described in Article 1.8:
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Contracting authority
What makes procurement public is the existence of a contracting party subject to public law, laid out broadly enough to cover many organisations established under the rules of private law, as elaborated in more detail in Article 1.9:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
*
An indicative list of contracting authorities is contained in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
***
Object
The object of the public contract is the execution of works, the supply of products or the provision of services.
Works
For the definition of public works contracts we turn to the definition in Article 1.2(b):
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
*
Typically, the outcome is a building or a road.
***.
Products
Article 1.2(c) of the Procurement Directive 2004/18/EC places products at the centre of a public supply contract:
(c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
A public contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘public supply contract’
*
Buying office paper or leasing a new car fleet could be thought of as examples.
***
Services
After excluding works and products, Article 1.2(d) refers to the services mentioned in Annex II Services referred to in Article 1(2)(d).
d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
*
Maintenance and repair services happen to be the ones first mentioned among the many categories included in Annex II.
***
Procurement Directive
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts
and public service contracts (published OJ 30.4.2004 L 134/114).
The consolidated version of 1 January 2008 of the Procurement Directive 2004/18/EC is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
Ralf Grahn
In writing, economic operator and contracting authority are among the concepts given definitions.
***
Definition: Public contracts
Article 1.2(a)
‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
In writing
After taking note of contracts and a pecuniary interest, we turn to the meaning of ‘in writing’. This leads us to a broad definition in Article 1.12:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
Electronic means are further explained in the following paragraph, 1.13:
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Economic operator
Economic operator is a convenient term to cover the concepts of contractor, supplier and service provider, as described in Article 1.8:
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Contracting authority
What makes procurement public is the existence of a contracting party subject to public law, laid out broadly enough to cover many organisations established under the rules of private law, as elaborated in more detail in Article 1.9:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
*
An indicative list of contracting authorities is contained in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
***
Object
The object of the public contract is the execution of works, the supply of products or the provision of services.
Works
For the definition of public works contracts we turn to the definition in Article 1.2(b):
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
*
Typically, the outcome is a building or a road.
***.
Products
Article 1.2(c) of the Procurement Directive 2004/18/EC places products at the centre of a public supply contract:
(c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
A public contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘public supply contract’
*
Buying office paper or leasing a new car fleet could be thought of as examples.
***
Services
After excluding works and products, Article 1.2(d) refers to the services mentioned in Annex II Services referred to in Article 1(2)(d).
d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
*
Maintenance and repair services happen to be the ones first mentioned among the many categories included in Annex II.
***
Procurement Directive
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts
and public service contracts (published OJ 30.4.2004 L 134/114).
The consolidated version of 1 January 2008 of the Procurement Directive 2004/18/EC is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
Ralf Grahn
Thursday, 11 December 2008
European Union: Social developments
The Commission shall include a separate chapter on social developments within the European Community (European Union) in its annual report to the European Parliament.
The Treaty of Lisbon eliminates a part of the overlap in the formal reporting requirements.
***
Article 145 TEC
The current Article 145 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 145 TEC
The Commission shall include a separate chapter on social developments within the Community in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends Article 143 TEC and point 121 concerns the European Social Fund (OJ 17.12.2007 C 306/82).
This means that there are no specific amendments. The ‘Community’ is replaced by the ‘Union’ according to the horizontal amendment mentioned in point 2(a) on page 42.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 145 TEC first became Article 145 TFEU (ToL), then to be renumbered Article 161 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Following renumbering of Article and the horizontal amendment replacing ‘Community’ by ‘Union’, Article 161 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE X
SOCIAL POLICY)
Article 161 TFEU
(ex Article 145 TEC)
The Commission shall include a separate chapter on social developments within the Union in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
European Union: Social situation report
According to Article 143 (ex Article 120) of the Treaty establishing the European Community (TEC) the Commission already has the obligation to produce an annual report on the achievement of the social policy objectives of the Community. To these is added the demographic situation of the Community.
The second paragraph entitles the European Parliament to request special reports on social questions.
The current Article 143 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 143 TEC
The Commission shall draw up a report each year on progress in achieving the objectives of Article 136, including the demographic situation in the Community. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
The European Parliament may invite the Commission to draw up reports on particular problems concerning the social situation.
***
More reporting
Article 145 TEC (ex Article 122) adds the obligation to include a separate chapter on social developments in the Commission’s (general) annual report and mandates the European Parliament to ask for specific reports on social conditions, although the report based on Article 143 TEC (Article 159 TFEU) is addressed to the European Parliament, the Council and the Economic and Social Committee and the demographic situation is mentioned specifically.
.
The second paragraphs of Article 143 and Article 145 are almost identical.
The Lisbon Treaty eliminates the overlapping second paragraph of Article 143 TEC in what became Article 159 TFEU.
***
The social situation in the European Union 2007
The latest report based on Article 143 TEC (Article 159 TFEU) is the following:
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) annual social policy report called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
General Report
The General Report on the Activities of the European Union is published annually to the European Parliament according to Article 212 TEC:
Article 212 TEC
The Commission shall publish annually, not later than one month before the opening of the session of the European Parliament, a general report on the activities of the Community.
The same obligation is found in Article 249(2) TFEU.
***
The General Report on the Activities of the European Union 2007 can be found here:
http://europa.eu/generalreport/en/2007/index.htm
Chapter III Solidarity most closely resembles the requirements of Article 145 TEC, although the contents go beyond social policy. Here are links to its contents:
Chapter III - Solidarity
Section 1 - 3.1. Consolidating economic and social cohesion
Section 2 - 3.2. Solidarity with future generations and management of natural resources
Section 3 - 3.3. Promoting common values within the European Union
***
European Parliament
According to Article 200 TEC the General Report is discussed by the European Parliament in plenary session:
Article 200 TEC
The European Parliament shall discuss in open session the annual general report submitted to it by the Commission.
Ralf Grahn
The Treaty of Lisbon eliminates a part of the overlap in the formal reporting requirements.
***
Article 145 TEC
The current Article 145 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 145 TEC
The Commission shall include a separate chapter on social developments within the Community in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends Article 143 TEC and point 121 concerns the European Social Fund (OJ 17.12.2007 C 306/82).
This means that there are no specific amendments. The ‘Community’ is replaced by the ‘Union’ according to the horizontal amendment mentioned in point 2(a) on page 42.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 145 TEC first became Article 145 TFEU (ToL), then to be renumbered Article 161 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Following renumbering of Article and the horizontal amendment replacing ‘Community’ by ‘Union’, Article 161 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/119:
(TITLE X
SOCIAL POLICY)
Article 161 TFEU
(ex Article 145 TEC)
The Commission shall include a separate chapter on social developments within the Union in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
European Union: Social situation report
According to Article 143 (ex Article 120) of the Treaty establishing the European Community (TEC) the Commission already has the obligation to produce an annual report on the achievement of the social policy objectives of the Community. To these is added the demographic situation of the Community.
The second paragraph entitles the European Parliament to request special reports on social questions.
The current Article 143 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 143 TEC
The Commission shall draw up a report each year on progress in achieving the objectives of Article 136, including the demographic situation in the Community. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
The European Parliament may invite the Commission to draw up reports on particular problems concerning the social situation.
***
More reporting
Article 145 TEC (ex Article 122) adds the obligation to include a separate chapter on social developments in the Commission’s (general) annual report and mandates the European Parliament to ask for specific reports on social conditions, although the report based on Article 143 TEC (Article 159 TFEU) is addressed to the European Parliament, the Council and the Economic and Social Committee and the demographic situation is mentioned specifically.
.
The second paragraphs of Article 143 and Article 145 are almost identical.
The Lisbon Treaty eliminates the overlapping second paragraph of Article 143 TEC in what became Article 159 TFEU.
***
The social situation in the European Union 2007
The latest report based on Article 143 TEC (Article 159 TFEU) is the following:
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) annual social policy report called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
General Report
The General Report on the Activities of the European Union is published annually to the European Parliament according to Article 212 TEC:
Article 212 TEC
The Commission shall publish annually, not later than one month before the opening of the session of the European Parliament, a general report on the activities of the Community.
The same obligation is found in Article 249(2) TFEU.
***
The General Report on the Activities of the European Union 2007 can be found here:
http://europa.eu/generalreport/en/2007/index.htm
Chapter III Solidarity most closely resembles the requirements of Article 145 TEC, although the contents go beyond social policy. Here are links to its contents:
Chapter III - Solidarity
Section 1 - 3.1. Consolidating economic and social cohesion
Section 2 - 3.2. Solidarity with future generations and management of natural resources
Section 3 - 3.3. Promoting common values within the European Union
***
European Parliament
According to Article 200 TEC the General Report is discussed by the European Parliament in plenary session:
Article 200 TEC
The European Parliament shall discuss in open session the annual general report submitted to it by the Commission.
Ralf Grahn
European Union: Public procurement definitions
Public contracts, public works contracts, public supply contracts and public service contracts are defined in Article 1(2) of the Procurement Directive 2004/18/EC.
Title I Definitions and general principles starts with Article 1 Definitions, and the definitions are set out in paragraphs 2 to 15.
First we present the definitions as given in the Procurement Directive. Then we refer to some materials aimed at business persons and public servants.
***
TITLE I
DEFINITIONS AND GENERAL PRINCIPLES
Article 1
Definitions
1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
(c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
A public contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘public supply contract’.
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Procurement Directive
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts
and public service contracts (published OJ 30.4.2004 L 134/114).
The consolidated version of 1 January 2008 of the Procurement Directive 2004/18/EC is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
***
Procurement law overview
The European Commission’s Scadplus web page Public works contracts, public supply contracts and public service contracts offers a business person or a public servant an overview of EC (EU) legislation (last update 14 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l22009.htm
***
Guidelines
More detailed Guidelines have been published by the Commission on public supply contracts, public procurement of services and public works contracts. They are based on the repealed Directives, but much of the information is still valid today:
http://ec.europa.eu/internal_market/publicprocurement/guidelines_en.htm
***
Harmonisation
The European Community (European Union) has used Directives to harmonise certain aspects of public procurement. Directives are binding as to the results to be achieved, but the member states are free to choose the means. Usually Directives are transposed by national legislation, and despite the common background and jurisprudence differences exist between the member states.
***
English – Swedish glossary
The Swedish Competition Authority (Konkurrensverket) has published an English – Swedish glossary of procurement terms (Engelsk- svensk ordlista avseende upphandlingstermer), available at:
http://www.konkurrensverket.se/upload/Filer/Upphandling/%C3%96vers%C3%A4ttning/eng-sv_ordlista.pdf
Ralf Grahn
Title I Definitions and general principles starts with Article 1 Definitions, and the definitions are set out in paragraphs 2 to 15.
First we present the definitions as given in the Procurement Directive. Then we refer to some materials aimed at business persons and public servants.
***
TITLE I
DEFINITIONS AND GENERAL PRINCIPLES
Article 1
Definitions
1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
(b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
(c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
A public contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘public supply contract’.
(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
***
Procurement Directive
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts
and public service contracts (published OJ 30.4.2004 L 134/114).
The consolidated version of 1 January 2008 of the Procurement Directive 2004/18/EC is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
***
Procurement law overview
The European Commission’s Scadplus web page Public works contracts, public supply contracts and public service contracts offers a business person or a public servant an overview of EC (EU) legislation (last update 14 January 2008):
http://europa.eu/scadplus/leg/en/lvb/l22009.htm
***
Guidelines
More detailed Guidelines have been published by the Commission on public supply contracts, public procurement of services and public works contracts. They are based on the repealed Directives, but much of the information is still valid today:
http://ec.europa.eu/internal_market/publicprocurement/guidelines_en.htm
***
Harmonisation
The European Community (European Union) has used Directives to harmonise certain aspects of public procurement. Directives are binding as to the results to be achieved, but the member states are free to choose the means. Usually Directives are transposed by national legislation, and despite the common background and jurisprudence differences exist between the member states.
***
English – Swedish glossary
The Swedish Competition Authority (Konkurrensverket) has published an English – Swedish glossary of procurement terms (Engelsk- svensk ordlista avseende upphandlingstermer), available at:
http://www.konkurrensverket.se/upload/Filer/Upphandling/%C3%96vers%C3%A4ttning/eng-sv_ordlista.pdf
Ralf Grahn
Wednesday, 10 December 2008
Lisbon Treaty: Czech mates
The Parliament of the Czech Republic has voted to postpone the ratification debate on the EU Treaty of Lisbon until 3 February 2009.
EurActiv in the article ‘Czechs postpone Lisbon Treaty vote’ cites Prime Minister Mirek Topolaneks difficulties in keeping his largely eurosceptic ODS (Civic Democrat) party together after a divisive leadership contest and the exit of founder Vaclav Klaus, currently President of the Republic:
http://www.euractiv.com/en/future-eu/czechs-postpone-lisbon-treaty-vote-2009/article-177927
Jean Quatremer of the excellent Coulisses de Bruxelles blog quotes Prime Minister Topolanek holding the Lisbon Treaty hostage to a “truce” to be negotiated with the opposition pro-EU Social Democrats for the duration of the six month Czech EU Council Presidency starting on 1 January 2009. The blog post ‘Lisbonne: nouveau pas de deux tchéque’ can be found here:
http://bruxelles.blogs.liberation.fr/coulisses/2008/12/lisbonne-nouvea.html
***
Regardless of the combined reasons, which are purely domestic, we can be assured that the Czech Prime Minister and the Czech Parliament are the only ones among their peers in 27 member states to have made a deliberate decision to disregard the target date of 1 January 2009 set in unison by the member states’ governments for the Lisbon Treaty to enter into force.
The Czech Republic may be as competent as any other member state drawn by lot to chair the Council, but Prime Minister Mirek Topolanek for domestic reasons and President Vaclav Klaus by his disregard for his European partners have set the tone for the Czech Council Presidency and laid the foundations for their country’s reputation in Europe.
I sometimes wonder at the class of hero the anti-EU has to adulate, given the dearth of uplifting choices.
Ralf Grahn
EurActiv in the article ‘Czechs postpone Lisbon Treaty vote’ cites Prime Minister Mirek Topolaneks difficulties in keeping his largely eurosceptic ODS (Civic Democrat) party together after a divisive leadership contest and the exit of founder Vaclav Klaus, currently President of the Republic:
http://www.euractiv.com/en/future-eu/czechs-postpone-lisbon-treaty-vote-2009/article-177927
Jean Quatremer of the excellent Coulisses de Bruxelles blog quotes Prime Minister Topolanek holding the Lisbon Treaty hostage to a “truce” to be negotiated with the opposition pro-EU Social Democrats for the duration of the six month Czech EU Council Presidency starting on 1 January 2009. The blog post ‘Lisbonne: nouveau pas de deux tchéque’ can be found here:
http://bruxelles.blogs.liberation.fr/coulisses/2008/12/lisbonne-nouvea.html
***
Regardless of the combined reasons, which are purely domestic, we can be assured that the Czech Prime Minister and the Czech Parliament are the only ones among their peers in 27 member states to have made a deliberate decision to disregard the target date of 1 January 2009 set in unison by the member states’ governments for the Lisbon Treaty to enter into force.
The Czech Republic may be as competent as any other member state drawn by lot to chair the Council, but Prime Minister Mirek Topolanek for domestic reasons and President Vaclav Klaus by his disregard for his European partners have set the tone for the Czech Council Presidency and laid the foundations for their country’s reputation in Europe.
I sometimes wonder at the class of hero the anti-EU has to adulate, given the dearth of uplifting choices.
Ralf Grahn
European Union: Social Protection Committee
The member states of the European Community (European Union) have agreed to coordinate their social policies and on the possibility to set minimum standards. The Commission supports these efforts.
The Social Protection Committee, in its current form established in 2004, functions in an advisory capacity as a joint forum for the member states’ governments and the Commission.
In the context of the Lisbon Strategy for Growth and Jobs, social cohesion has its own role as an EC (EU) aim. Outside the world of legal acts, the developing open method of coordination (OMC) finds some of its main applications in the fields of social protection and social inclusion. But first we look at what the existing treaty and the Lisbon Treaty have to say about the Social Protection Committee.
***
Article 144 TEC
Article 144 (ex Article 121) of the Treaty establishing the European Community (TEC) concerns the establishment of the advisory Social Protection Committee.
The tasks of the Committee are coordinating in nature, but in the Treaty of Nice they were drafted with the open method of coordination (OMC) in mind.
The customary reference to Article 207 TEC means that the Social Protection Committee – an important sectoral committee – does not jeopardise the status of the Committee of the Permanent Representatives of the Member States (Coreper) as the last stop before matters are laid on the table for decisions by the Ministers in the Council.
The contacts with management and labour in the English treaty version are, as usual, given a more specific meaning in other language versions, which refer to the social partners (or similar).
Whereas the Commission acts as the work-horse, the essentially intergovernmental nature of the Social Protection Committee (and the social policy area) is brought to light by the following facts: The Committee is established by the Council. The tasks are mainly related to policies of the member states. Each member state nominates two members (54 in all), while the Commission is represented by two members.
The current Article 144 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 144 TEC
The Council, after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission. The tasks of the Committee shall be:
— to monitor the social situation and the development of social protection policies in the Member States and the Community,
— to promote exchanges of information, experience and good practice between Member States and with the Commission,
— without prejudice to Article 207, to prepare reports, formulate opinions or undertake other work within its fields of competence, at the request of either the Council or the Commission or on its own initiative.
In fulfilling its mandate, the Committee shall establish appropriate contacts with management and labour.
Each Member State and the Commission shall appoint two members of the Committee.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends the preceding Article 143 TEC and point 121 concerns the European Social Fund, so there were no specific amendments to Article 144 TEC (OJ 17.12.2007 C 306/82).
The ‘Community’ is replaced by ‘Union’ according to the horizontal amendment in Article 2, point 2(a) ToL and in the first paragraph the words ‘acting by a simple majority’ are inserted after the Council in accordance with point 4.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 144 TEC first became Article 144 TFEU (ToL), then to be renumbered Article 160 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After these modest adjustments Article 160 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/118–119:
(TITLE X
SOCIAL POLICY)
Article 160 TFEU
(ex Article 144 TEC)
The Council, acting by a simple majority after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission. The tasks of the Committee shall be:
— to monitor the social situation and the development of social protection policies in the Member States and the Union,
— to promote exchanges of information, experience and good practice between Member States and with the Commission,
— without prejudice to Article 240, to prepare reports, formulate opinions or undertake other work within its fields of competence, at the request of either the Council or the Commission or on its own initiative.
In fulfilling its mandate, the Committee shall establish appropriate contacts with management and labour.
Each Member State and the Commission shall appoint two members of the Committee.
***
The social situation in the European Union 2007
Just as a reminder I recall the general social policy report mentioned in the previous blog post and in the context of the preceding treaty Article.
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) latest annual social policy report is called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
Social Protection Committee: Secondary legislation
If we return to the Social Protection Committee, the following step from a legal point of view is to look at the Council Decision whereby it was established as it exists now.
The current Social Protection Committee was established by Council Decision 2004/689/EC of 4 October 2004 establishing a Social Protection Committee and repealing Decision 2000/436/EC ( published OJ 13.10.2004 L 314/8). Even for those less interested in the legal technicalities, the Recitals (Whereas) laying out the existing rules and the reasons for the new ones are often the beast means to get a quick overview, especially if textbooks and other publications have not been updated at the time.
Based on Article 144 TEC, the Council Decision can be found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:314:0008:0010:EN:PDF
***
Further reading
The Commission’s Scadplus web pages offer main points of Community legislation in a readable format. The page Social Protection Committee can be found here:
http://europa.eu/scadplus/leg/en/cha/c10119.htm
***
Activities: Lisbon Strategy and social cohesion
Even a lawyer has to admit the existence of other breeds of people, who might be interested in various real life occurrences like the activities of a high-level committee. As a concession to such interests, here are a few references to EU social policy (within the framework of EU law), including the context (Lisbon Strategy for Growth and Jobs) and the open method of coordination (OMC).
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities presents information about the activities, with links to additional information. Under the banner of the Lisbon Strategy and its aim to achieve social cohesion, the page The Social Protection Committee lays stress on the open method of coordination (OMC). The links in this regard may be of interest to some readers:
http://ec.europa.eu/employment_social/spsi/social_protection_committee_en.htm
***
Open method of coordination (OMC)
In the context of social cohesion the web page The process: the Open Method of Coordination presents main features of the OMC, including the Commission’s recent proposal to reinforce the open method of coordination for social protection and social inclusion COM/2008/0418 final. There are also links to additional pages on the OMC, i.a. Common objectives, Common indicators, National Strategic Reports:
http://ec.europa.eu/employment_social/spsi/the_process_en.htm
***
Joint reports
Joint reports by the Commission and the Council are further explained on the web page Joint reports:
http://ec.europa.eu/employment_social/spsi/joint_reports_en.htm
***
Joint report 2008
The latest version, the Joint Report on Social Protection and Social Inclusion 2008 (Council document 7274/08) is available here.
http://register.consilium.europa.eu/pdf/en/08/st07/st07274.en08.pdf
The joint report was based on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Proposal for the Joint Report on social protection and social inclusion 2008, COM/2008/0042 final, with additional information in document {SEC(2008) 91}, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0042:FIN:EN:PDF
***
The next spring European Council, this time under the Czech Council Presidency, is looming on the horizon. This means that preparatory documents will start to appear on various aspects of the Lisbon Strategy for Growth and Jobs ahead of the Council formations which finalise the groundwork for the heads of state or government in March 2009.
Ralf Grahn
The Social Protection Committee, in its current form established in 2004, functions in an advisory capacity as a joint forum for the member states’ governments and the Commission.
In the context of the Lisbon Strategy for Growth and Jobs, social cohesion has its own role as an EC (EU) aim. Outside the world of legal acts, the developing open method of coordination (OMC) finds some of its main applications in the fields of social protection and social inclusion. But first we look at what the existing treaty and the Lisbon Treaty have to say about the Social Protection Committee.
***
Article 144 TEC
Article 144 (ex Article 121) of the Treaty establishing the European Community (TEC) concerns the establishment of the advisory Social Protection Committee.
The tasks of the Committee are coordinating in nature, but in the Treaty of Nice they were drafted with the open method of coordination (OMC) in mind.
The customary reference to Article 207 TEC means that the Social Protection Committee – an important sectoral committee – does not jeopardise the status of the Committee of the Permanent Representatives of the Member States (Coreper) as the last stop before matters are laid on the table for decisions by the Ministers in the Council.
The contacts with management and labour in the English treaty version are, as usual, given a more specific meaning in other language versions, which refer to the social partners (or similar).
Whereas the Commission acts as the work-horse, the essentially intergovernmental nature of the Social Protection Committee (and the social policy area) is brought to light by the following facts: The Committee is established by the Council. The tasks are mainly related to policies of the member states. Each member state nominates two members (54 in all), while the Commission is represented by two members.
The current Article 144 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/111:
Article 144 TEC
The Council, after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission. The tasks of the Committee shall be:
— to monitor the social situation and the development of social protection policies in the Member States and the Community,
— to promote exchanges of information, experience and good practice between Member States and with the Commission,
— without prejudice to Article 207, to prepare reports, formulate opinions or undertake other work within its fields of competence, at the request of either the Council or the Commission or on its own initiative.
In fulfilling its mandate, the Committee shall establish appropriate contacts with management and labour.
Each Member State and the Commission shall appoint two members of the Committee.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends the preceding Article 143 TEC and point 121 concerns the European Social Fund, so there were no specific amendments to Article 144 TEC (OJ 17.12.2007 C 306/82).
The ‘Community’ is replaced by ‘Union’ according to the horizontal amendment in Article 2, point 2(a) ToL and in the first paragraph the words ‘acting by a simple majority’ are inserted after the Council in accordance with point 4.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 144 TEC first became Article 144 TFEU (ToL), then to be renumbered Article 160 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After these modest adjustments Article 160 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/118–119:
(TITLE X
SOCIAL POLICY)
Article 160 TFEU
(ex Article 144 TEC)
The Council, acting by a simple majority after consulting the European Parliament, shall establish a Social Protection Committee with advisory status to promote cooperation on social protection policies between Member States and with the Commission. The tasks of the Committee shall be:
— to monitor the social situation and the development of social protection policies in the Member States and the Union,
— to promote exchanges of information, experience and good practice between Member States and with the Commission,
— without prejudice to Article 240, to prepare reports, formulate opinions or undertake other work within its fields of competence, at the request of either the Council or the Commission or on its own initiative.
In fulfilling its mandate, the Committee shall establish appropriate contacts with management and labour.
Each Member State and the Commission shall appoint two members of the Committee.
***
The social situation in the European Union 2007
Just as a reminder I recall the general social policy report mentioned in the previous blog post and in the context of the preceding treaty Article.
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) latest annual social policy report is called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
Social Protection Committee: Secondary legislation
If we return to the Social Protection Committee, the following step from a legal point of view is to look at the Council Decision whereby it was established as it exists now.
The current Social Protection Committee was established by Council Decision 2004/689/EC of 4 October 2004 establishing a Social Protection Committee and repealing Decision 2000/436/EC ( published OJ 13.10.2004 L 314/8). Even for those less interested in the legal technicalities, the Recitals (Whereas) laying out the existing rules and the reasons for the new ones are often the beast means to get a quick overview, especially if textbooks and other publications have not been updated at the time.
Based on Article 144 TEC, the Council Decision can be found here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:314:0008:0010:EN:PDF
***
Further reading
The Commission’s Scadplus web pages offer main points of Community legislation in a readable format. The page Social Protection Committee can be found here:
http://europa.eu/scadplus/leg/en/cha/c10119.htm
***
Activities: Lisbon Strategy and social cohesion
Even a lawyer has to admit the existence of other breeds of people, who might be interested in various real life occurrences like the activities of a high-level committee. As a concession to such interests, here are a few references to EU social policy (within the framework of EU law), including the context (Lisbon Strategy for Growth and Jobs) and the open method of coordination (OMC).
The Commission’s Directorate-General Employment, Social Affairs and Equal Opportunities presents information about the activities, with links to additional information. Under the banner of the Lisbon Strategy and its aim to achieve social cohesion, the page The Social Protection Committee lays stress on the open method of coordination (OMC). The links in this regard may be of interest to some readers:
http://ec.europa.eu/employment_social/spsi/social_protection_committee_en.htm
***
Open method of coordination (OMC)
In the context of social cohesion the web page The process: the Open Method of Coordination presents main features of the OMC, including the Commission’s recent proposal to reinforce the open method of coordination for social protection and social inclusion COM/2008/0418 final. There are also links to additional pages on the OMC, i.a. Common objectives, Common indicators, National Strategic Reports:
http://ec.europa.eu/employment_social/spsi/the_process_en.htm
***
Joint reports
Joint reports by the Commission and the Council are further explained on the web page Joint reports:
http://ec.europa.eu/employment_social/spsi/joint_reports_en.htm
***
Joint report 2008
The latest version, the Joint Report on Social Protection and Social Inclusion 2008 (Council document 7274/08) is available here.
http://register.consilium.europa.eu/pdf/en/08/st07/st07274.en08.pdf
The joint report was based on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Proposal for the Joint Report on social protection and social inclusion 2008, COM/2008/0042 final, with additional information in document {SEC(2008) 91}, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0042:FIN:EN:PDF
***
The next spring European Council, this time under the Czech Council Presidency, is looming on the horizon. This means that preparatory documents will start to appear on various aspects of the Lisbon Strategy for Growth and Jobs ahead of the Council formations which finalise the groundwork for the heads of state or government in March 2009.
Ralf Grahn
Tuesday, 9 December 2008
European Union: Social situation report
The preambles of existing and future treaties mention economic and social progress among the main reasons for European integration.
The Commission has a treaty obligation to report annually on the achievement of the social policy objectives and on the demographic situation in the European Community (European Union).
We look at the relevant provisions of the current Treaty establishing the European Community and of the Lisbon Treaty.
The latest annual report The social situation in the European Union 2007, published 22 May 2008, calls for social cohesion through equal opportunities. In other words, its message is to invest in people.
Students, researchers and politicians can profit from the report for the benefit of EU citizens.
***
Article 143 TEC
According to Article 143 (ex Article 120) of the Treaty establishing the European Community (TEC) the Commission has the obligation to produce an annual report on the achievement of the social policy objectives of the Community. To these is added the demographic situation of the Community.
The second paragraph entitles the European Parliament to request special reports on social questions.
The current Article 143 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 143 TEC
The Commission shall draw up a report each year on progress in achieving the objectives of Article 136, including the demographic situation in the Community. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
The European Parliament may invite the Commission to draw up reports on particular problems concerning the social situation.
***
Social policy objectives
The social policy objectives of the European Community (European Union) mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, are:
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
Article 143 TEC adds the demographic situation in the Community to the matters to be covered in the report. The European Parliament, the Council and the Economic and Social Committee are named as recipients of this annual report.
***
More reporting?
Article 145 TEC (ex Article 122) adds the obligation to include a separate chapter on social developments in the Commission’s (general) annual report and mandates the European Parliament to ask for specific reports on social conditions. The second paragraphs of Article 143 and Article 145 are almost identical:
Article 145 TEC
The Commission shall include a separate chapter on social developments within the Community in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends Article 143 TEC (OJ 17.12.2007 C 306/82):
120) In Article 143, the second paragraph shall be deleted.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 143 TEC first became Article 143 TFEU (ToL), then then to be renumbered Article 159 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Following renumbering of Article and referral, the horizontal amendment replacing ‘Community’ by ‘Union’ and the specific amendment deleting the second paragraph, Article 159 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/118,:
(TITLE X
SOCIAL POLICY)
Article 159 TFEU
(ex Article 143 TEC)
The Commission shall draw up a report each year on progress in achieving the objectives of Article 151, including the demographic situation in the Union. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
***
The Lisbon Treaty eliminates one of the overlapping second paragraphs concerning particular problems.
***
The social situation in the European Union 2007
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) latest annual social policy report is called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
‘Economic and social progress’ denotes that the European Union is more than an economic community.
Ralf Grahn
The Commission has a treaty obligation to report annually on the achievement of the social policy objectives and on the demographic situation in the European Community (European Union).
We look at the relevant provisions of the current Treaty establishing the European Community and of the Lisbon Treaty.
The latest annual report The social situation in the European Union 2007, published 22 May 2008, calls for social cohesion through equal opportunities. In other words, its message is to invest in people.
Students, researchers and politicians can profit from the report for the benefit of EU citizens.
***
Article 143 TEC
According to Article 143 (ex Article 120) of the Treaty establishing the European Community (TEC) the Commission has the obligation to produce an annual report on the achievement of the social policy objectives of the Community. To these is added the demographic situation of the Community.
The second paragraph entitles the European Parliament to request special reports on social questions.
The current Article 143 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 143 TEC
The Commission shall draw up a report each year on progress in achieving the objectives of Article 136, including the demographic situation in the Community. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
The European Parliament may invite the Commission to draw up reports on particular problems concerning the social situation.
***
Social policy objectives
The social policy objectives of the European Community (European Union) mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, are:
– promotion of employment
– improved and harmonised living and working conditions
– social protection
– dialogue between management and labour
– development of human resources
– combating exclusion.
Article 143 TEC adds the demographic situation in the Community to the matters to be covered in the report. The European Parliament, the Council and the Economic and Social Committee are named as recipients of this annual report.
***
More reporting?
Article 145 TEC (ex Article 122) adds the obligation to include a separate chapter on social developments in the Commission’s (general) annual report and mandates the European Parliament to ask for specific reports on social conditions. The second paragraphs of Article 143 and Article 145 are almost identical:
Article 145 TEC
The Commission shall include a separate chapter on social developments within the Community in its annual report to the European Parliament.
The European Parliament may invite the Commission to draw up reports on any particular problems concerning social conditions.
***
Original Lisbon Treaty (ToL)
Article 2, point 120 of the original Treaty of Lisbon (ToL) amends Article 143 TEC (OJ 17.12.2007 C 306/82):
120) In Article 143, the second paragraph shall be deleted.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X. Article 143 TEC first became Article 143 TFEU (ToL), then then to be renumbered Article 159 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
Following renumbering of Article and referral, the horizontal amendment replacing ‘Community’ by ‘Union’ and the specific amendment deleting the second paragraph, Article 159 of the Treaty on the Functioning of the European Union (TFEU), appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/118,:
(TITLE X
SOCIAL POLICY)
Article 159 TFEU
(ex Article 143 TEC)
The Commission shall draw up a report each year on progress in achieving the objectives of Article 151, including the demographic situation in the Union. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
***
The Lisbon Treaty eliminates one of the overlapping second paragraphs concerning particular problems.
***
The social situation in the European Union 2007
The Commission’s (Directorate-General for Employment, Social Affairs and Equal Opportunities; Eurostat) latest annual social policy report is called The Social Situation in the European Union 2007 – Social Cohesion through Equal Opportunities (published 2008; 199 pages):
http://ec.europa.eu/employment_social/spsi/docs/social_situation/ssr2007_en.pdf
For a quick take on the findings, you can read the press release issued when the report was published, 22 May 2008 (MEMO/08/326):
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/326
***
‘Economic and social progress’ denotes that the European Union is more than an economic community.
Ralf Grahn
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