SCANDAL: COMMON MARKET SCRAPPED!
When the European leaders flew to Lisbon to sign the re-wrapped Constitution they had not read, they dumped the cherished Common Market on the scrap heap of History!
Confirmed by Constitutional experts!
Read more!
***
Many unbelievable things have been said about the Treaty of Lisbon (ToL), but this is one point where tabloids and bloggers with a traditionalist and nostalgic agenda seem to have missed an opportunity, so I decided to give them a helping hand.
The facts are, in a way, correct, as they should be according to the Tabloids’ Style Guide.
Let me fill in the background:
In the Lisbon Treaty the intergovernmental conference (IGC 2007) made a number of horizontal amendments to the Treaty establishing the European Community (TEC), which was renamed the Treaty on the Functioning of the European Union (TFEU). Point 2(g) imparts that:
“Throughout the Treaty … the words ‘common market’ shall be replaced by ‘internal market’.“
Do not take my word for it. You can check yourself in the Official Journal (OJ 17.12.2007 C 306/41).
***
I admit that this was a scheming and devious way to bring a whole group of treaty changes to your attention: the horizontal amendments.
In the new order of things, certain terms and concepts have been substituted throughout. These terminological or editorial changes affect an awful lot of the TFEU provisions without altering the substance.
***
Let us now turn our attention to today’s sermon: shared competence.
Yesterday we looked at the areas where the member states have delegated exclusive powers to the European Community, to be merged into the European Union. Exclusive competence is wonderfully clear, as long as we are able to ascertain the boundaries of these powers.
Starting to think about competence shared by the European Union and the member states, we realise that there is a new element of complexity. ‘Who does what?’ becomes one of the defining questions in the relationship between the EU and each member.
The division of powers has to be settled somehow, over a range of areas and often in minute detail, as in all systems with different levels of responsibility.
Some mix of detailed provisions and jurisprudence is usually needed to settle the difficult questions. Perhaps one of the main reasons for the voluminous treaties (and much secondary legislation) is the anxiety with which the member states have approached delegating powers to the European Community, thus reducing the scope for litigation.
(On the other hand, laborious and muddled compromises may lead to the opposite result.)
***
Today, our aim is more modest than to settle esoteric issues of law. In true Civil Law style we turn to written legislation to find a systematic approach to the basic questions of law.
The IGC 2007 offers us the following fundamental rules on the ‘division of labour’ between the European Union and its member states (OJ 17.12.2007 C 306/46-47):
Article 2c TFEU (ToL), to be renumbered Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 2 B and 2 E.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
If you read the Article attentively, you will find that the wording is careful. Words like ‘principal areas’ indicate a need to look deeper, and paragraphs 3 and 4 single out a few areas for special treatment.
But on the whole we have a robust User’s Manual for the most frequently asked questions:
When confronted with the question ‘shared competence’, we can at least start by following our operating instructions:
1) Is this an area of exclusive EU competence? If the answer is ‘no’ (Article 2b), we turn to our following question.
2) Is it an area where the EU can carry out actions to support, coordinate or supplement the actions of the member states (Article 2e)? If the answer is in the negative, too, we have at least eliminated a lot of potential traps.
3) We can turn our attention to the areas mentioned in Article 2c TFEU. If we find the area mentioned, we have covered a lot of ground.
Actually, the few TFEU Articles on competences in general give us a fair indication of what the whole treaty is about, and the areas of shared competence in particular are the ones where “Brussels” pours out the vast bulk of its legislation and where the overwhelming part of the Union’s budget is spent (for the most part in and by the member states).
Note that the IGC 2007 inserted the combat against climate change under the ‘environment’ in the detailed provisions of the TFEU. In the same way ‘energy’ was strengthened.
Paragraph 3 covers areas which could just as well have been located under supporting actions, since they operate mainly through Union programmes intended to complement activities in fields where the member states operate freely, and the nation states operate their own bilateral programmes in the areas of development aid and humanitarian assistance alongside EU action as recognised in paragraph 4.
***
But what does it mean, when the competence is shared or concurrent?
The hard and fast rule is found by returning to Article 2a(2) TFEU (ToL), renumbered Article 2(2) TFEU:
“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
We see that the EU has supranational competence, with two basic exceptions:
1) The Union has not exercised its competence.
2) The Union has decided to cease exercising its competence.
Yes, true to their promise the governments of the member states have provided for the option to decrease some of the powers of the Union by giving them back to the member states.
The attentive reader may notice a distinction. The exclusive competences are, exaggerating slightly, ‘gone forever’, meaning that a treaty amendment would be needed to re-nationalise these areas. Ordinary legislation is enough to ‘return to sender’ chunks or morsels of shared competence.
***
The diligent student may want to look at the drafting history of the provision on shared competence.
Here are some materials to start digging, but let us work backwards for a change:
The corresponding provision of the Treaty establishing a Constitution for Europe is Article I-14 Areas of shared competence (OJ 16.12.2004 C 310/16). Comparing the similarities and differences between the Treaty of Lisbon and the Constitution we find that the Articles are almost identical, with only editorial changes in the Reform Treaty.
Article I-13 Areas of shared competence proposed by the European Convention in the draft Treaty establishing a Constitution for Europe differed from the Constitution in a few stylistic choices, none of them with material consequences (OJ 18.7.2003 C 169/11).
The Convention was the innovator concerning the systematic approach, and substantially it added the area of energy, which had relied on the flexibility clause in Article 308 TEC. Therefore you would have to look at the detailed provisions of the existing TEC or turn to a textbook to find a general description of the present situation, but the material differences from TEC to ToL are not significant, perhaps with the exception of energy and climate change.
***
There are a few additional points to make before we leave the concurrent or shared competences.
The question of subsidiarity does not rise in the framework of exclusive Union competence, but when both the EU and the member states are active in the same area, catchwords like ‘added value’ enter the scene.
The latest version of the Protocol on the application of the principles of subsidiarity and proportionality forms part of the treaties, and it sets out a whole system of scrutiny involving the national parliaments (OJ 17.12.2007 C 306/148-150):
PROTOCOL
ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY
AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,
WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union,
RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union, and to establish a system for monitoring the application of those principles,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union.
Article 2
Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.
Article 3
For the purposes of this Protocol, ‘draft legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a legislative act.
Article 4
The Commission shall forward its draft legislative acts and its amended drafts to national arliaments at the same time as to the Union legislator.
The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.
The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments.
Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments.
Article 5
Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.
Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.
If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States.
If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.
Article 7
1. The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.
Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.
2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 61 I of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.
3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the proposal must be reviewed. After such review, the Commission may decide to maintain, amend or withdraw the proposal.
If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be submitted to the Union legislator, for consideration in the procedure:
(a) before concluding the first reading, the legislator (the European Parliament and the Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments as well as the reasoned opinion of the Commission;
(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration.
Article 8
The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 230 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.
In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.
Article 9
The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a report on the application of Article 3b of the Treaty on European Union. This annual report shall also be forwarded to the Economic and Social Committee and the Committee of the Regions.
***
Then we have the Protocol on the exercise of shared competence (OJ 17.12.2007 C 306/156), even if I admit to difficulties placing it in the correct category: self-evident and redundant or profound. Perhaps it is just an indication of political atmospherics:
PROTOCOL
ON THE EXERCISE OF SHARED COMPETENCE
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
Finally, there is no way I could leave your thirst for Declaration 18 in relation to the delimitation of competences unslaked (OJ 17.12.2007 C 306/254-255):
18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.
***
If you, dear reader, managed to get this far, you have my respect and sympathy.
Ralf Grahn
Tuesday, 19 February 2008
Monday, 18 February 2008
EU: TFEU Exclusive competence
In which areas does the European Community (EC) wield the greatest powers? In a nutshell we can say that we return to the establishment of the European Economic Community (EEC) more than fifty years ago. The principal aims of the Treaty of Rome were twofold, external and internal:
External: The six founding members set out to become more than a free trade area, namely a customs union with unified tariffs concerning the rest of the world (third countries). A common commercial policy for the trading bloc can be seen as a logical consequence of the customs union, giving the members considerable bargaining powers in the GATT and later WTO world trade rounds, as well as in other trade related negotiations with the outside world, groups of states or individual countries.
Internal: The other objective was to progress towards unhindered “interstate commerce” through what was called the ‘common market’, in order to raise competitiveness, enhance prosperity, create jobs and raise living standards. Later the more ambitious term ‘internal market’ was introduced, and both concepts have been used in parallel until the Treaty of Lisbon (ToL), which opts for the sole use of ‘internal market’. Exclusive competence is given concerning one important aspect of the internal market: the competition rules.
Economic and monetary union (EMU) with the currency unit ‘ecu’ and the adoption of the ‘euro’ currency with real banknotes and coins requires a unified monetary policy, a later development of European economic integration.
The interdependence between internal and external powers explains the competence to make international treaties. ‘Mirror image’ might be a helpful figure of speech.
***
The IGC 2007 agreed to insert a new Article 2b into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) by the Treaty of Lisbon (OJ 17.12.2007 C 306/44-45):
Article 2b TFEU (ToL), renumbered Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal
market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.
***
The European Convention decided to clarify the scattered competences in the TEC and to codify the principles established by the jurisprudence of the ECJ. In the group of exclusive competence, the competition rules of the internal market were mentioned first, followed by the other areas.
The scope was widened to encompass the common commercial policy as a whole at this level of the draft Constitution, but the “French cultural exception” rebounded concerning “trade in cultural and audiovisual services, where these risk prejudicing the Union’s cultural and linguistic diversity” in Article III-217(4).
The common fisheries policy is a special branch of economic activity, and following ECJ precedent one aspect, the conservation of marine biological resources, was visibly placed under supranational tutelage.
The Convention introduced the following Article I-12 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2007 C 169/10):
Article I-12
Exclusive competence
1. The Union shall have exclusive competence to establish the competition rules necessary for the functioning of the internal market, and in the following areas:
— monetary policy, for the Member States which have adopted the euro,
— common commercial policy,
— customs union,
— the conservation of marine biological resources under the common fisheries policy.
2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.
***
Redrafting but without altering the substance, the IGC 2004 agreed on the following Article I-13 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/15-16):
Article I-13
Areas of exclusive competence
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary to
enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.
***
To summarise: The systematic, codifying approach to the competences originates with the Convention. We can see that the Constitution only reordered the areas mentioned in the draft without altering the substance, and that the Lisbon Treaty takes over the text of the Constitution.
***
Having looked at the areas of exclusive competence, we take a step back to remind ourselves of what that exclusiveness means. The preceding Article gives the answer:
Article 2a(1) TFEU (ToL), after renumbering Article 2(1) TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
***
Finally, we glance in the other direction. When confronted with a concrete problem to delimitate competences, the provisions presented above give us a mental framework, but we have to look for the boundaries and arrangements in the treaty provisions and jurisprudence concerning each area.
Ralf Grahn
External: The six founding members set out to become more than a free trade area, namely a customs union with unified tariffs concerning the rest of the world (third countries). A common commercial policy for the trading bloc can be seen as a logical consequence of the customs union, giving the members considerable bargaining powers in the GATT and later WTO world trade rounds, as well as in other trade related negotiations with the outside world, groups of states or individual countries.
Internal: The other objective was to progress towards unhindered “interstate commerce” through what was called the ‘common market’, in order to raise competitiveness, enhance prosperity, create jobs and raise living standards. Later the more ambitious term ‘internal market’ was introduced, and both concepts have been used in parallel until the Treaty of Lisbon (ToL), which opts for the sole use of ‘internal market’. Exclusive competence is given concerning one important aspect of the internal market: the competition rules.
Economic and monetary union (EMU) with the currency unit ‘ecu’ and the adoption of the ‘euro’ currency with real banknotes and coins requires a unified monetary policy, a later development of European economic integration.
The interdependence between internal and external powers explains the competence to make international treaties. ‘Mirror image’ might be a helpful figure of speech.
***
The IGC 2007 agreed to insert a new Article 2b into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) by the Treaty of Lisbon (OJ 17.12.2007 C 306/44-45):
Article 2b TFEU (ToL), renumbered Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal
market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.
***
The European Convention decided to clarify the scattered competences in the TEC and to codify the principles established by the jurisprudence of the ECJ. In the group of exclusive competence, the competition rules of the internal market were mentioned first, followed by the other areas.
The scope was widened to encompass the common commercial policy as a whole at this level of the draft Constitution, but the “French cultural exception” rebounded concerning “trade in cultural and audiovisual services, where these risk prejudicing the Union’s cultural and linguistic diversity” in Article III-217(4).
The common fisheries policy is a special branch of economic activity, and following ECJ precedent one aspect, the conservation of marine biological resources, was visibly placed under supranational tutelage.
The Convention introduced the following Article I-12 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2007 C 169/10):
Article I-12
Exclusive competence
1. The Union shall have exclusive competence to establish the competition rules necessary for the functioning of the internal market, and in the following areas:
— monetary policy, for the Member States which have adopted the euro,
— common commercial policy,
— customs union,
— the conservation of marine biological resources under the common fisheries policy.
2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.
***
Redrafting but without altering the substance, the IGC 2004 agreed on the following Article I-13 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/15-16):
Article I-13
Areas of exclusive competence
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary to
enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.
***
To summarise: The systematic, codifying approach to the competences originates with the Convention. We can see that the Constitution only reordered the areas mentioned in the draft without altering the substance, and that the Lisbon Treaty takes over the text of the Constitution.
***
Having looked at the areas of exclusive competence, we take a step back to remind ourselves of what that exclusiveness means. The preceding Article gives the answer:
Article 2a(1) TFEU (ToL), after renumbering Article 2(1) TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
***
Finally, we glance in the other direction. When confronted with a concrete problem to delimitate competences, the provisions presented above give us a mental framework, but we have to look for the boundaries and arrangements in the treaty provisions and jurisprudence concerning each area.
Ralf Grahn
Sunday, 17 February 2008
EU: TFEU Categories of Competence
For neat packaging and presentation you could look at the EU Law Blog posting “Reform Treaty: Taxonomy of Competence”,
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html –
taxonomy meaning a system of classification. Having offered you a succinct option, I feel less guilty about the rambling Sunday constitutional (with small ‘c’) I am going embark on concerning the different categories of EU competence, as presented in the Treaty of Lisbon (ToL).
Étienne de Poncins in “Vers une Constitution européenne" pointed out that Title III of Part I of the draft Treaty establishing a Constitution for Europe, and especially Article I-11, was based on the Laeken declaration aim to make the distribution of competences more transparent, and to answer the question: Who is responsible for what in Europe? This was to be achieved by dividing competences into three main categories: exclusive competence, shared competence and competence to carry out actions to support, coordinate or supplement the actions of the Member States (pages 102-103).
***
Since the main categories of powers mentioned as well as the specialised coordination procedures are going to be treated separately (or have been, concerning the CFSP and CSDP), this posting offers an assortment of general observations, primarily based on official resources.
***
Deprived of symbols and battered by two intergovernmental conferences, the achievement of the European Convention, the draft Treaty establishing a Constitution for Europe, remains a milestone in the development of the European Treaties.
The second Convention was broadly based. It drew its members from the national parliaments, the European Parliament, representatives of the heads of state or government and the Commission under the guidance of a chairman and two vice-presidents chosen by the European Council.
Most of the treaty novelties and improvements discussed lately can be traced back to the Convention. Its main contributions concern the institutional decision making of the European Union, the framing of an incipient common foreign and security policy (CFSP), including a common security and defence policy (CSDP), and a more comprehensive area of freedom, security and justice.
The draft Constitution clarified and improved on the patchwork reforms of earlier treaties. One such instance is the clear exposition of different categories of EU competence.
***
The UK House of Commons Library Research Paper 07/86, 6 December 2007, “The Treaty of Lisbon: amendments to the Treaty establishing the European Community” (page 11 and 12), set out the background of the present state of different categories of competences:
“A. Union Competence
1. Defining competences
‘Competence’ is the term used to define whether the Union or the Member States has the responsibility under the EC Treaties to make decisions on a particular policy. Competence at regional or local level is not specified in the Lisbon Treaty. In defining whether the EC or the Member States have competence in any particular area or for a specific task, the terms “spheres of competence”, “shared competence”, “Community competence” and “exclusive competence” are terms used in the present Treaties, but these do not list areas of exclusive or shared competence. The following EU explanation of competences, or powers, reflects the current situation:
There are three types of powers, which depend on how they are conferred:
Explicit powers: these are clearly defined in the relevant articles of the Treaties.
Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the Community in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-Community countries in the same field (the principle of parallelism between internal and external powers).
Subsidiary powers: where the Community has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 308 of the Treaty establishing the European Community allows the Council, acting unanimously, to take the measures it considers necessary.”
***
Research Paper 07/86 went on to describe the discussions during the last reform round:
“In the 2003-04 constitutional discussions, which initially included the EU institutions, Member State governments and parliaments, NGOs and a range of representatives from civil society, some participants wanted comprehensive lists setting out divisions of competence, while others preferred a more flexible approach without lists. The Lisbon Treaty, like the Constitution in 2004, contains a compromise: there are lists, but they are short and do not cover every aspect of Union activity, thereby leaving scope for interpretation. They define ‘exclusive’ and ‘shared’ competences, and areas in which the Union can provide supporting or complementary action.”
***
Having presented a general view, the Research Paper continued with a presentation of the cautious UK government position:
“In its 2004 White Paper on the draft Constitution the British Government had generally welcomed the division of competences, but had been cautious about further conferral of powers on the Union. The present White Paper of July 2007 also supported the reforms in this respect, and particularly welcomed the Declaration stating that competences can be reduced, as well as increased:
The Reform Treaty will set out a more transparent and accountable structure for the EU. It includes a definition of the Union’s competences, which sets out where the EU can and cannot act. It also makes clear that Treaties can be revised to increase or reduce the competences conferred upon the EU. Therefore, the Member States would have the ability to transfer competences from the EU if they agree to do so.”
***
Perhaps we should proceed with an overview of the mandate of the intergovernmental conference concerning the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 Mandate (Council document 11218/07, point 18) first established its predecessor, the IGC 2004 as the basis for the amendments to be made:
“18. The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).”
***
The IGC 2007 then went on to enumerate the exceptions to the rule, first generally and then concerning the vertical division of powers:
“19. The following modifications will be introduced compared to the results of the 2004 IGC (see Annex 2):
a) A new Article 1 will state the purpose of the Treaty on the functioning of the Union and its relation with the EU Treaty. It will state that the two Treaties have the same legal value.
b) In the Article on categories of competences, placed at the beginning of the TEC, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.”
Footnote 10 gave further guidance:
“10 (a) The IGC will also agree a Declaration in relation to the delimitation of competences: "The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union, competences not conferred upon the Union in the Treaties remain with Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to better ensure the constant respect for the principles of subsidiarity and proportionality. The Council may request, at the initiative of one or several of its Members (representatives of Member States) and in accordance with Article 208, the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article [IV-443] of the Treaty on European Union, may decide to amend the Treaties on which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties."
(b) The following Protocol will be annexed to the Treaties:
"With reference to Article[ I-12(2)] on shared competences, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The (IGC 2007) duly inserted a new Title I Categories and areas of Union competence into the Treaty on the Functioning of the European Union (TFEU) and at its beginning an Article 2a, which lays out the different categories (OJ 17.12.2007 C 306/45).
12) The following new Title and new Articles 2 A to 2 E shall be inserted:
‘TITLE I
CATEGORIES AND AREAS OF UNION COMPETENCE
Article 2a TFEU (ToL), after renumbering Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Research Paper 07/86 gave the following presentation and assessment of the proposed amendments:
“The amended TFEU opens with a statement on its purpose, which is, according to amended Article 1 (Lisbon Article 1a), to organise the functioning of the Union and determine the areas, the scope of, and arrangements for exercising its competences. This Article makes clear the difference between the TFEU and the TEU, which contains intergovernmental procedures for the CFSP, treaty revision, ratification and other matters largely not subject to Union decision-making processes. There was no such Article in the Constitution. Amended Article 2 spells out that the TFEU and the TEU are the founding Treaties of the Union and have the same legal value. The present TEU and TEC are also both legally valid, although subject to different decision-making processes. The Categories and Areas of Union Competence are set out in Title 1, Lisbon Articles 2A–E (Constitution Articles I-12 to I-15 and I-17). Constitution Article I-16, on the Union’s competence in the Common Foreign and Security Policy (CFSP), the progressive framing of a common defence policy and the requirement for loyalty and mutual solidarity, remains intergovernmental and is transferred to Article 11(3) of the TEU.”
***
The Swedish government’s Green Paper described the changes like this (page 143):
”Sammanfattning: Bestämmelser om indelning av unionens befogenheter i kategorier och områden införs i EUF-fördraget. Därmed blir befogenhetsfördelningen inom unionen mer överskådlig och ansvarsutkrävandet underlättas. Unionens befogenheter indelas i tre kategorier. Indelningen görs utifrån den befogenhet att lagstifta som unionen har tilldelats och beroende på om denna befogenhet tilldelats unionen ensam (exklusiv befogenhet), tillsammans med medlemsstaterna (delad befogenhet) eller om den i huvudsak omfattas av medlemsstaternas befogenhet (stödjande, samordnande eller kompletterande åtgärder).
En särskild bestämmelse införs i EUF-fördraget för att klargöra den särskilda karaktären hos samordningen av medlemsstaternas ekonomiska politik och sysselsättningspolitik.
En särskild bestämmelse införs också i EUF-fördraget för att klargöra att den gemensamma utrikes- och säkerhetspolitiken är av särskild art.
Tillämpningsområdet för flexibilitetsklausulen utvidgas och den parlamentariska kontrollen av klausulens användning stärks.”
The qualitative key words were more ’lucidity’ leading to improved ’accountability’.
***
If we take a step back a few years in history, we can see that the European Convention proposed an Article I-11, already mentioned above, Categories of competence in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/10):
Article I-11
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of acts adopted by the Union.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States shall have the power to legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and in the conditions laid down in the Constitution, 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.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III.
***
In the Treaty establishing a Constitution for Europe the member states had agreed on the following wording in Article I-12 (OJ 16.12.2004 C 310/15):
Article I-12
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Constitution, 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 in Part III relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III.
***
You can make the comparison yourself; follow the drafting from the draft Constitution to the Constitution and now to the Lisbon Treaty.
My conclusion would be that once again we can see the debt of gratitude we owe the European Convention for an important improvement.
***
In order to supplement this compilation of resources, we turn to some documents pertaining to the Lisbon Treaty.
The member states have agreed on the following Protocol (OJ 17.12.2007 C 306/156):
Protocol
on the exercise of shared competence
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
We also take note of two relevant Declarations, number 17 and 18 (OJ 17.12.2007 C 306/254-255):
17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the
European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
“Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1)) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.”
[Footnote 1 then quotes the ECJ]
(1) “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”’
***
In my humble opinion, it would have been more illuminating to state the well established supremacy or primacy of (EC) EU law openly, as the European Convention did in the draft Constitution:
Article 10(1)
Union law
1. The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.
The IGC 2004 followed the same principle of transparent lawmaking in Article I-6 Union law of the Constitutional Treaty:
Article I-6
Union law
The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.
***
Relegating this crucial piece of information to an obscure declaration did nothing to change the fact that all the governments of the member states acknowledge of the principle of primacy, but the text of the Lisbon Treaty itself is less transparent as a result.
Perhaps nothing can console those who are most vexed at the principle of supremacy, but I would like to point out that it applies within the powers conferred on the European Union, not as a license to override or overturn national legislation or parliamentary powers in general.
And the Treaty of Lisbon does nothing to change the fact that both present and future conferral of powers to the EU remains in the hands of the member states’ governments, with approval by their parliaments.
***
This is further elaborated in the other relevant Declaration of the Lisbon Treaty, which is the one on delimitation of competences (OJ 17.12.2007 C 306/254-255):
“18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”
***
We can see that the European Union can not only ‘usurp’ powers from the member states, but also relinquish competences, especially if these powers can be better exercised at the member state level.
The common foreign and security policy and the common security and defence policy remain distinct areas of intergovernmental cooperation, and the provisions on competences are housed in the Treaty on European Union (TEU). I refer the interested reader to earlier postings on the TEU.
In the following TFEU instalments we are going to take a closer look at the areas where the different categories of competence are applied, the three main categories, as well as specific coordination of economic and employment policies.
Ralf Grahn
Sources:
EU Law Blog: Reform Treaty: Taxonomy of Competence; 13 January 2008;
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html
Étienne de Poncins: Vers une Constitution européenne. Texte commenté du projet de traité constitutionel établi par la Convention européenne ; Éditions 10/18, 2003 ; www.10-18.fr
UK House of Commons Library Research Paper 07/86, 6 December 2007, The Treaty of Lisbon: amendments to the Treaty establishing the European Community
Statsrådsberedningen: Lissabonfördraget; Departementsserien (Ds) 2007:48, 20 december 2007 (‘Green Paper’ of the government of Sweden)
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html –
taxonomy meaning a system of classification. Having offered you a succinct option, I feel less guilty about the rambling Sunday constitutional (with small ‘c’) I am going embark on concerning the different categories of EU competence, as presented in the Treaty of Lisbon (ToL).
Étienne de Poncins in “Vers une Constitution européenne" pointed out that Title III of Part I of the draft Treaty establishing a Constitution for Europe, and especially Article I-11, was based on the Laeken declaration aim to make the distribution of competences more transparent, and to answer the question: Who is responsible for what in Europe? This was to be achieved by dividing competences into three main categories: exclusive competence, shared competence and competence to carry out actions to support, coordinate or supplement the actions of the Member States (pages 102-103).
***
Since the main categories of powers mentioned as well as the specialised coordination procedures are going to be treated separately (or have been, concerning the CFSP and CSDP), this posting offers an assortment of general observations, primarily based on official resources.
***
Deprived of symbols and battered by two intergovernmental conferences, the achievement of the European Convention, the draft Treaty establishing a Constitution for Europe, remains a milestone in the development of the European Treaties.
The second Convention was broadly based. It drew its members from the national parliaments, the European Parliament, representatives of the heads of state or government and the Commission under the guidance of a chairman and two vice-presidents chosen by the European Council.
Most of the treaty novelties and improvements discussed lately can be traced back to the Convention. Its main contributions concern the institutional decision making of the European Union, the framing of an incipient common foreign and security policy (CFSP), including a common security and defence policy (CSDP), and a more comprehensive area of freedom, security and justice.
The draft Constitution clarified and improved on the patchwork reforms of earlier treaties. One such instance is the clear exposition of different categories of EU competence.
***
The UK House of Commons Library Research Paper 07/86, 6 December 2007, “The Treaty of Lisbon: amendments to the Treaty establishing the European Community” (page 11 and 12), set out the background of the present state of different categories of competences:
“A. Union Competence
1. Defining competences
‘Competence’ is the term used to define whether the Union or the Member States has the responsibility under the EC Treaties to make decisions on a particular policy. Competence at regional or local level is not specified in the Lisbon Treaty. In defining whether the EC or the Member States have competence in any particular area or for a specific task, the terms “spheres of competence”, “shared competence”, “Community competence” and “exclusive competence” are terms used in the present Treaties, but these do not list areas of exclusive or shared competence. The following EU explanation of competences, or powers, reflects the current situation:
There are three types of powers, which depend on how they are conferred:
Explicit powers: these are clearly defined in the relevant articles of the Treaties.
Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the Community in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-Community countries in the same field (the principle of parallelism between internal and external powers).
Subsidiary powers: where the Community has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 308 of the Treaty establishing the European Community allows the Council, acting unanimously, to take the measures it considers necessary.”
***
Research Paper 07/86 went on to describe the discussions during the last reform round:
“In the 2003-04 constitutional discussions, which initially included the EU institutions, Member State governments and parliaments, NGOs and a range of representatives from civil society, some participants wanted comprehensive lists setting out divisions of competence, while others preferred a more flexible approach without lists. The Lisbon Treaty, like the Constitution in 2004, contains a compromise: there are lists, but they are short and do not cover every aspect of Union activity, thereby leaving scope for interpretation. They define ‘exclusive’ and ‘shared’ competences, and areas in which the Union can provide supporting or complementary action.”
***
Having presented a general view, the Research Paper continued with a presentation of the cautious UK government position:
“In its 2004 White Paper on the draft Constitution the British Government had generally welcomed the division of competences, but had been cautious about further conferral of powers on the Union. The present White Paper of July 2007 also supported the reforms in this respect, and particularly welcomed the Declaration stating that competences can be reduced, as well as increased:
The Reform Treaty will set out a more transparent and accountable structure for the EU. It includes a definition of the Union’s competences, which sets out where the EU can and cannot act. It also makes clear that Treaties can be revised to increase or reduce the competences conferred upon the EU. Therefore, the Member States would have the ability to transfer competences from the EU if they agree to do so.”
***
Perhaps we should proceed with an overview of the mandate of the intergovernmental conference concerning the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 Mandate (Council document 11218/07, point 18) first established its predecessor, the IGC 2004 as the basis for the amendments to be made:
“18. The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).”
***
The IGC 2007 then went on to enumerate the exceptions to the rule, first generally and then concerning the vertical division of powers:
“19. The following modifications will be introduced compared to the results of the 2004 IGC (see Annex 2):
a) A new Article 1 will state the purpose of the Treaty on the functioning of the Union and its relation with the EU Treaty. It will state that the two Treaties have the same legal value.
b) In the Article on categories of competences, placed at the beginning of the TEC, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.”
Footnote 10 gave further guidance:
“10 (a) The IGC will also agree a Declaration in relation to the delimitation of competences: "The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union, competences not conferred upon the Union in the Treaties remain with Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to better ensure the constant respect for the principles of subsidiarity and proportionality. The Council may request, at the initiative of one or several of its Members (representatives of Member States) and in accordance with Article 208, the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article [IV-443] of the Treaty on European Union, may decide to amend the Treaties on which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties."
(b) The following Protocol will be annexed to the Treaties:
"With reference to Article[ I-12(2)] on shared competences, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The (IGC 2007) duly inserted a new Title I Categories and areas of Union competence into the Treaty on the Functioning of the European Union (TFEU) and at its beginning an Article 2a, which lays out the different categories (OJ 17.12.2007 C 306/45).
12) The following new Title and new Articles 2 A to 2 E shall be inserted:
‘TITLE I
CATEGORIES AND AREAS OF UNION COMPETENCE
Article 2a TFEU (ToL), after renumbering Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Research Paper 07/86 gave the following presentation and assessment of the proposed amendments:
“The amended TFEU opens with a statement on its purpose, which is, according to amended Article 1 (Lisbon Article 1a), to organise the functioning of the Union and determine the areas, the scope of, and arrangements for exercising its competences. This Article makes clear the difference between the TFEU and the TEU, which contains intergovernmental procedures for the CFSP, treaty revision, ratification and other matters largely not subject to Union decision-making processes. There was no such Article in the Constitution. Amended Article 2 spells out that the TFEU and the TEU are the founding Treaties of the Union and have the same legal value. The present TEU and TEC are also both legally valid, although subject to different decision-making processes. The Categories and Areas of Union Competence are set out in Title 1, Lisbon Articles 2A–E (Constitution Articles I-12 to I-15 and I-17). Constitution Article I-16, on the Union’s competence in the Common Foreign and Security Policy (CFSP), the progressive framing of a common defence policy and the requirement for loyalty and mutual solidarity, remains intergovernmental and is transferred to Article 11(3) of the TEU.”
***
The Swedish government’s Green Paper described the changes like this (page 143):
”Sammanfattning: Bestämmelser om indelning av unionens befogenheter i kategorier och områden införs i EUF-fördraget. Därmed blir befogenhetsfördelningen inom unionen mer överskådlig och ansvarsutkrävandet underlättas. Unionens befogenheter indelas i tre kategorier. Indelningen görs utifrån den befogenhet att lagstifta som unionen har tilldelats och beroende på om denna befogenhet tilldelats unionen ensam (exklusiv befogenhet), tillsammans med medlemsstaterna (delad befogenhet) eller om den i huvudsak omfattas av medlemsstaternas befogenhet (stödjande, samordnande eller kompletterande åtgärder).
En särskild bestämmelse införs i EUF-fördraget för att klargöra den särskilda karaktären hos samordningen av medlemsstaternas ekonomiska politik och sysselsättningspolitik.
En särskild bestämmelse införs också i EUF-fördraget för att klargöra att den gemensamma utrikes- och säkerhetspolitiken är av särskild art.
Tillämpningsområdet för flexibilitetsklausulen utvidgas och den parlamentariska kontrollen av klausulens användning stärks.”
The qualitative key words were more ’lucidity’ leading to improved ’accountability’.
***
If we take a step back a few years in history, we can see that the European Convention proposed an Article I-11, already mentioned above, Categories of competence in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/10):
Article I-11
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of acts adopted by the Union.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States shall have the power to legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and in the conditions laid down in the Constitution, 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.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III.
***
In the Treaty establishing a Constitution for Europe the member states had agreed on the following wording in Article I-12 (OJ 16.12.2004 C 310/15):
Article I-12
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Constitution, 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 in Part III relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III.
***
You can make the comparison yourself; follow the drafting from the draft Constitution to the Constitution and now to the Lisbon Treaty.
My conclusion would be that once again we can see the debt of gratitude we owe the European Convention for an important improvement.
***
In order to supplement this compilation of resources, we turn to some documents pertaining to the Lisbon Treaty.
The member states have agreed on the following Protocol (OJ 17.12.2007 C 306/156):
Protocol
on the exercise of shared competence
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
We also take note of two relevant Declarations, number 17 and 18 (OJ 17.12.2007 C 306/254-255):
17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the
European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
“Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1)) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.”
[Footnote 1 then quotes the ECJ]
(1) “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”’
***
In my humble opinion, it would have been more illuminating to state the well established supremacy or primacy of (EC) EU law openly, as the European Convention did in the draft Constitution:
Article 10(1)
Union law
1. The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.
The IGC 2004 followed the same principle of transparent lawmaking in Article I-6 Union law of the Constitutional Treaty:
Article I-6
Union law
The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.
***
Relegating this crucial piece of information to an obscure declaration did nothing to change the fact that all the governments of the member states acknowledge of the principle of primacy, but the text of the Lisbon Treaty itself is less transparent as a result.
Perhaps nothing can console those who are most vexed at the principle of supremacy, but I would like to point out that it applies within the powers conferred on the European Union, not as a license to override or overturn national legislation or parliamentary powers in general.
And the Treaty of Lisbon does nothing to change the fact that both present and future conferral of powers to the EU remains in the hands of the member states’ governments, with approval by their parliaments.
***
This is further elaborated in the other relevant Declaration of the Lisbon Treaty, which is the one on delimitation of competences (OJ 17.12.2007 C 306/254-255):
“18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”
***
We can see that the European Union can not only ‘usurp’ powers from the member states, but also relinquish competences, especially if these powers can be better exercised at the member state level.
The common foreign and security policy and the common security and defence policy remain distinct areas of intergovernmental cooperation, and the provisions on competences are housed in the Treaty on European Union (TEU). I refer the interested reader to earlier postings on the TEU.
In the following TFEU instalments we are going to take a closer look at the areas where the different categories of competence are applied, the three main categories, as well as specific coordination of economic and employment policies.
Ralf Grahn
Sources:
EU Law Blog: Reform Treaty: Taxonomy of Competence; 13 January 2008;
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html
Étienne de Poncins: Vers une Constitution européenne. Texte commenté du projet de traité constitutionel établi par la Convention européenne ; Éditions 10/18, 2003 ; www.10-18.fr
UK House of Commons Library Research Paper 07/86, 6 December 2007, The Treaty of Lisbon: amendments to the Treaty establishing the European Community
Statsrådsberedningen: Lissabonfördraget; Departementsserien (Ds) 2007:48, 20 december 2007 (‘Green Paper’ of the government of Sweden)
Saturday, 16 February 2008
Consolidated Lisbon Treaty Update
People continue to arrive at this blog looking for a consolidated version of the Treaty of Lisbon.
The last update of the list of consolidated language versions is not that old, published 8 February 2008. But since then a few kind souls have told us about new consolidations, and I have been able to take a look at some complementary sources. Therefore, the time for an update has come.
Let us remember that the European Union has 23 treaty and official languages. The intergovernmental conference itself professed its belief in linguistic diversity, and encouraged the translation of the treaties into regional and minority languages by the member state governments.
As far as I know, with the exception of a leaked French version from the European Parliament, none of the consolidations has been produced by the EU institutions, and only one directly by a government. The rest have been compiled by parliaments, think-tanks, NGOs and private citizens.
The nine or ten languages with consolidated versions published to date cover only parts of our community of 490 million citizens.
Here is an updated list of the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO also published Command Paper 7311 ‘A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon’, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
Assemblée nationale
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin.
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
http://www.sieps.se
The publisher SNS Förlag has announced a handy pocket version of the Treaty of Lisbon in Swedish, to be published 29 February 2008. If the new publication follows the pattern of the previous pocket treaties by SNS, it will contain the bare treaty texts.
http://www.sns.se
***
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified) last time the list was published, we now know of 9 or 10 official EU languages covered out of 23.
Are there more consolidated versions the citizens of the European Union should be aware of?
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
The last update of the list of consolidated language versions is not that old, published 8 February 2008. But since then a few kind souls have told us about new consolidations, and I have been able to take a look at some complementary sources. Therefore, the time for an update has come.
Let us remember that the European Union has 23 treaty and official languages. The intergovernmental conference itself professed its belief in linguistic diversity, and encouraged the translation of the treaties into regional and minority languages by the member state governments.
As far as I know, with the exception of a leaked French version from the European Parliament, none of the consolidations has been produced by the EU institutions, and only one directly by a government. The rest have been compiled by parliaments, think-tanks, NGOs and private citizens.
The nine or ten languages with consolidated versions published to date cover only parts of our community of 490 million citizens.
Here is an updated list of the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO also published Command Paper 7311 ‘A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon’, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
Assemblée nationale
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin.
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
http://www.sieps.se
The publisher SNS Förlag has announced a handy pocket version of the Treaty of Lisbon in Swedish, to be published 29 February 2008. If the new publication follows the pattern of the previous pocket treaties by SNS, it will contain the bare treaty texts.
http://www.sns.se
***
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified) last time the list was published, we now know of 9 or 10 official EU languages covered out of 23.
Are there more consolidated versions the citizens of the European Union should be aware of?
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
Friday, 15 February 2008
Der Vertrag von Lissabon
Klemens H. Fischer has published his latest book on the development of the European treaties. This time Fischer deals with the Treaty of Lisbon and the process leading to the amending reform treaty.
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU, including protocols and declarations.
The accompanying CD-Rom contains background material, the current treaties and three different consolidations of each amending treaty:
with amendments highlighted and footnotes,
with amendments highlighted and
a neutral consolidated version.
***
Earlier Fischer has published books on the Treaty of Nice, the European Convention, the Treaty establishing a Constitution for Europe and the development of the European treaties,:
Der Vertrag von Nizza (2003)
Der Konvent zur Zukunft Europas (2003)
Der Europäische Verfassungsvertrag (2005)
Die Entwicklung des europäischen Vertragsrechts (2005)
***
The new book on the Treaty of Lisbon means that you can follow half a century of development of the European treaties from Rome to Lisbon without leaving Fischer, especially taking into account the ample documentation offered on the CD-Roms.
I have used three of Fischer’s books, and in my opinion they contain competent summaries of the background as well as diligently compiled annotations on the provisions.
The reading portions, based on close observation, are suited to a wider German reading public, and the annotated treaty texts are a valuable source for serious students of European integration.
Ralf Grahn
See:
Klemens H. Fischer: Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag; with CD-Rom; Nomos, Stämpfli Verlag and Verlag Österreich, 2008; price about 79 €
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU, including protocols and declarations.
The accompanying CD-Rom contains background material, the current treaties and three different consolidations of each amending treaty:
with amendments highlighted and footnotes,
with amendments highlighted and
a neutral consolidated version.
***
Earlier Fischer has published books on the Treaty of Nice, the European Convention, the Treaty establishing a Constitution for Europe and the development of the European treaties,:
Der Vertrag von Nizza (2003)
Der Konvent zur Zukunft Europas (2003)
Der Europäische Verfassungsvertrag (2005)
Die Entwicklung des europäischen Vertragsrechts (2005)
***
The new book on the Treaty of Lisbon means that you can follow half a century of development of the European treaties from Rome to Lisbon without leaving Fischer, especially taking into account the ample documentation offered on the CD-Roms.
I have used three of Fischer’s books, and in my opinion they contain competent summaries of the background as well as diligently compiled annotations on the provisions.
The reading portions, based on close observation, are suited to a wider German reading public, and the annotated treaty texts are a valuable source for serious students of European integration.
Ralf Grahn
See:
Klemens H. Fischer: Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag; with CD-Rom; Nomos, Stämpfli Verlag and Verlag Österreich, 2008; price about 79 €
EU: TFEU Competences
The Treaty of Lisbon re-names one of the Treaties and re-arranges the contents of the Treaties.
***
Under Common provisions, the intergovernmental conference (IGC 2007) repealed the Articles 1 and 2 of the Treaty establishing the European Community (TEC) and inserted an Article 1a into the Treaty on the Functioning of the European Union (TFEU):
Article 1a TFEU – future Article 1 TFEU
1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as “the Treaties”.
***
The existing Article 1 TEC concerns the establishment of the European Community, which is being abolished by the Treaty of Lisbon and replaced by the all-encompassing European Union (EU). Therefore a referral to the new organisational and treaty structure seems to be in order.
The current Article 2 TEC refers to main tasks (goals) of the EC such as economic development, employment and social protection, as well as means to attain them, like the common market and economic and monetary union. These are shifted to and given a more systematic approach in the new Articles 2a and 2b TFEU.
The introductory provision of the TFEU connects the two amended Treaties, and it states in a low key the main themes for the rest of the TFEU: the functioning of the EU and the competences, the areas where the EU has powers, the different kinds of powers and how the EU goes about using them.
Ralf Grahn
***
Under Common provisions, the intergovernmental conference (IGC 2007) repealed the Articles 1 and 2 of the Treaty establishing the European Community (TEC) and inserted an Article 1a into the Treaty on the Functioning of the European Union (TFEU):
Article 1a TFEU – future Article 1 TFEU
1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as “the Treaties”.
***
The existing Article 1 TEC concerns the establishment of the European Community, which is being abolished by the Treaty of Lisbon and replaced by the all-encompassing European Union (EU). Therefore a referral to the new organisational and treaty structure seems to be in order.
The current Article 2 TEC refers to main tasks (goals) of the EC such as economic development, employment and social protection, as well as means to attain them, like the common market and economic and monetary union. These are shifted to and given a more systematic approach in the new Articles 2a and 2b TFEU.
The introductory provision of the TFEU connects the two amended Treaties, and it states in a low key the main themes for the rest of the TFEU: the functioning of the EU and the competences, the areas where the EU has powers, the different kinds of powers and how the EU goes about using them.
Ralf Grahn
Thursday, 14 February 2008
EU: TFEU Preamble
Why have the governments and parliaments of first six, now 27, nation states fallen for the siren call of ‘ever closer union’?
The first effort to present the general causes of and the historic reasons for European integration are found in the Preamble to the Treaty on the Functioning of the European Union (TFEU).
Even in its latest version the Preamble is almost frozen in time.
***
After the horizontal amendments, the intergovernmental conference (IGC 2007) advanced to specific amendments (OJ 17.12.2007 C 306/44):
B. Specific amendments
Preamble
10) In the second recital, the word ‘countries’ shall be replaced by ‘States’ and in the last recital, the words ‘HAVE DECIDED to create a EUROPEAN COMMUNITY and to this end have designated’ shall be replaced by ‘and to this end HAVE DESIGNATED’.
***
The Preamble to the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), is almost a museum exhibit of European integration (in the latest consolidated version of the TEC, OJ 29.12.2006 C 321 E/43).
The piety shown to the Preamble since the establishment of the European Economic Community (EEC) is illustrated by the fact that only the last substantial recital on knowledge and education has been added during 50 years.
The European Community has since enlarged to 27 members, but the six founding member states are still at the beginning of the Preamble.
The European Community dissolves into the European Union, but true to tradition, the IGC 2007 makes only the slightest editorial adaptations to the text.
***
After the necessary adaptations, the consolidated version of Preamble of the TFEU should begin like this in the Treaty of Lisbon version:
HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,
DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,
and to this end HAVE DESIGNATED as their Plenipotentiaries:
(List of plenipotentiaries not reproduced)
WHO, having exchanged their full powers, found in good and due form, have agreed as follows.
***
One reflection is that the objectives of European integration are almost timeless, starting with ‘an ever closer union among the peoples of Europe’, real solidarity believed to flow naturally from ever closer cooperation between their countries.
Another thought is that a museum can freeze life at a certain point in time, but in the street outside life continues to adapt and change. Without remembering the establishment of the European Union and its development through the Maastricht, Amsterdam and Nice treaties, the contributions by the Convention and the Constitutional Treaty, and now the Lisbon Treaty, the picture of the ultimate goals would be incomplete.
Experiment a little: Read one recital, then stop to think if you can subscribe to that or not. Then take on the next one. In the end, count how many ‘yes’ and how many ‘no’ answers you have.
***
Since the TFEU Preamble barely changes, it hardly gets a mention in the legislative documents I have looked at, but it would be a mistake to bypass the Preamble as if it lacked importance.
According to the Vienna Convention on the Law of Treaties, Article 31(2) the text of a treaty includes its preamble and annexes for the purpose of the interpretation.
Ralf Grahn
The first effort to present the general causes of and the historic reasons for European integration are found in the Preamble to the Treaty on the Functioning of the European Union (TFEU).
Even in its latest version the Preamble is almost frozen in time.
***
After the horizontal amendments, the intergovernmental conference (IGC 2007) advanced to specific amendments (OJ 17.12.2007 C 306/44):
B. Specific amendments
Preamble
10) In the second recital, the word ‘countries’ shall be replaced by ‘States’ and in the last recital, the words ‘HAVE DECIDED to create a EUROPEAN COMMUNITY and to this end have designated’ shall be replaced by ‘and to this end HAVE DESIGNATED’.
***
The Preamble to the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), is almost a museum exhibit of European integration (in the latest consolidated version of the TEC, OJ 29.12.2006 C 321 E/43).
The piety shown to the Preamble since the establishment of the European Economic Community (EEC) is illustrated by the fact that only the last substantial recital on knowledge and education has been added during 50 years.
The European Community has since enlarged to 27 members, but the six founding member states are still at the beginning of the Preamble.
The European Community dissolves into the European Union, but true to tradition, the IGC 2007 makes only the slightest editorial adaptations to the text.
***
After the necessary adaptations, the consolidated version of Preamble of the TFEU should begin like this in the Treaty of Lisbon version:
HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,
DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,
and to this end HAVE DESIGNATED as their Plenipotentiaries:
(List of plenipotentiaries not reproduced)
WHO, having exchanged their full powers, found in good and due form, have agreed as follows.
***
One reflection is that the objectives of European integration are almost timeless, starting with ‘an ever closer union among the peoples of Europe’, real solidarity believed to flow naturally from ever closer cooperation between their countries.
Another thought is that a museum can freeze life at a certain point in time, but in the street outside life continues to adapt and change. Without remembering the establishment of the European Union and its development through the Maastricht, Amsterdam and Nice treaties, the contributions by the Convention and the Constitutional Treaty, and now the Lisbon Treaty, the picture of the ultimate goals would be incomplete.
Experiment a little: Read one recital, then stop to think if you can subscribe to that or not. Then take on the next one. In the end, count how many ‘yes’ and how many ‘no’ answers you have.
***
Since the TFEU Preamble barely changes, it hardly gets a mention in the legislative documents I have looked at, but it would be a mistake to bypass the Preamble as if it lacked importance.
According to the Vienna Convention on the Law of Treaties, Article 31(2) the text of a treaty includes its preamble and annexes for the purpose of the interpretation.
Ralf Grahn
Wednesday, 13 February 2008
Consolidated Lisbon Treaty in Irish and Portuguese
I am happy to share with you the message I received from Peadar ó Broin, of the Institute of International and European Affairs (IIEA), in Dublin, Ireland, on two new language versions of the Treaty of Lisbon:
“Hi Ralf,
Just to let you know that the Irish Gaelic consolidated version of the Treaties will go up on the IIEA's website this Monday.
I noticed that there is now a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs: http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
You can link to the text via the website for the Ministry of Foreign Affairs: http://www.mne.gov.pt/ and via the website for the Portuguese Presidency of 2007: http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
Thanks also for your daily illuminations on the Treaty of Lisbon. I noticed you got high praise from the folks who work on EU Law Blog - congrats!
Best regards,
Peadar”
***
For the Irish version and just to remind you: The IIEA has already published the complete Lisbon Treaty, the TEU, the TFEU and the Annexes as well as the Protocols, in English.
Go to http://www.iiea.com
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified), we now know of 9 or 10 official EU languages covered out of 23.
Then there are a few alternative consolidations in French and German that I will try to include next time I update the list (last published 8 February 2008).
Are there more consolidated versions we should know about?
Ralf Grahn
“Hi Ralf,
Just to let you know that the Irish Gaelic consolidated version of the Treaties will go up on the IIEA's website this Monday.
I noticed that there is now a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs: http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
You can link to the text via the website for the Ministry of Foreign Affairs: http://www.mne.gov.pt/ and via the website for the Portuguese Presidency of 2007: http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
Thanks also for your daily illuminations on the Treaty of Lisbon. I noticed you got high praise from the folks who work on EU Law Blog - congrats!
Best regards,
Peadar”
***
For the Irish version and just to remind you: The IIEA has already published the complete Lisbon Treaty, the TEU, the TFEU and the Annexes as well as the Protocols, in English.
Go to http://www.iiea.com
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified), we now know of 9 or 10 official EU languages covered out of 23.
Then there are a few alternative consolidations in French and German that I will try to include next time I update the list (last published 8 February 2008).
Are there more consolidated versions we should know about?
Ralf Grahn
TFEU: Introduction
The European Convention never had the time to make a deep impact on the policy areas of the European Community, and in the intergovernmental conference (IGC 2004) the governments of the member states were obsessed by institutional questions, such as voting weights in the Council.
The IGC 2007 returned to the unfinished business left by the aborted ratification process of the Treaty establishing a Constitution for Europe.
Already in the context of the Convention and the Constitutional Treaty there were calls from pundits for an overhaul of the policies of the EU, and some echo from European leaders, but the national leaders seem to have been overwhelmed by the challenge to bring this stage of institutional reform to a close.
Thus, the main thrust of the Lisbon Treaty reform is institutional: to improve decision making within areas where the European Union (EU) and the European Community (EC) already exercise powers delegated by the member states.
If the Treaty of Lisbon survives the gauntlet of 27 national ratifications, the more mundane task of reforming the practical policies of the EU might raise enough of politicians’ interest to allow an overdue modernising exercise.
***
Article 2 of the Treaty of Lisbon contains the amendments to the Treaty establishing the European Community (TEC), which is renamed the Treaty on the Functioning of the European Union (TFEU).
Many of the changes to the TFEU are caused by the reordering of the treaties, with the Treaty on European Union (TEU) becoming home to the constitutional principles and objectives of the European Union and the fundamental provisions on the institutions. In addition, the continuing separateness of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) is given emphasis by housing them in the TEU.
Besides the reordering, renaming of various concepts leads to a fair amount of amendments throughout the TFEU, but most of the changes are rather technical. The Treaty of Lisbon is no profound reform of EU policies, although the area of freedom, security and justice is united under normal rules for the countries without derogations and opt-outs, and some additional tinkering and tidying up occur.
***
Why then bother to wade through the TFEU?
The treaties are the most important documents of the European Union. They lay the foundations for common action aiming to improve the security and prosperity of the citizens of the European Union. The rule of law means that every piece of legislation and every decision has to be based on the treaties.
The great questions of foreign and security policy may attract more media attention, but businesses and citizens are affected more directly by EU legislation and the everyday workings of the institutions.
Assuming that a reasonable amount of knowledge about the European Union is in the interest of private parties, then it is better to study the latest edition of our common rules. This leads us to the Treaty on the Functioning of the European Union (TFEU), as agreed on in the Lisbon Treaty. Even if the TFEU were to be hit by an accident never to enter into force, we would have gleaned some knowledge of the unreformed European Community (European Union).
***
Article 2 of the Treaty of Lisbon states that the Treaty establishing the European Community (TEC) shall be amended in accordance with the provisions of this Article (OJ 17.12.2007 C 306/41).
Following from the merger of the EC into the EU and the renewed structure of the treaties, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 then sets out a number of horizontal amendments, leading to editorial or technical adaptations throughout the TFEU. I just highlight some of the new terminology we might want to get used to:
The ‘Union’ replaces the words ‘Community’ and ‘European Community’
‘The Treaties’ replaces ‘this Treaty’ and ‘the present Treaty’
The ‘ordinary legislative procedure’ replaces the procedure referred to in Article 251
The ‘internal market’ replaces the ‘common market’
‘Euro’ replaces ‘ecu’
‘Member States whose currency is the euro’ replaces ‘Member State without derogation’
The ‘European Central Bank’ replaces the abbreviation ‘ECB’
‘Economic and Financial Committee’ replaces the Committee provided for in Article 114
‘Specialised court’ replaces ‘judicial panel’
‘Acting unanimously in accordance with a special legislative procedure’ is inserted where the existing treaty says ‘acting unanimously on a proposal from the Commission’
‘Acting by a simple majority’ is inserted into seven Articles
In two instances ‘obtaining the consent of the European Parliament’ replaces mere consultation
The ‘Court of Justice of the European Union’ becomes the official name, but sometimes the short form ‘Court’ is used
***
To these horizontal amendments of terminology are added the amendments concerning numbering and renumbering of the treaties, compounded by the less than reader-friendly drafting of the treaties themselves.
I salute the silent heroes who have produced the few consolidated language versions of the Treaty of Lisbon we already have. I wish that the versions still missing are produced and published soon. Brochures and web page summaries are important for the citizens of the EU, but they are far from enough.
(For the existing consolidations, as far as I know, see my latest compilation of sources, the 8 February 2008 posting ‘Lisbon Treaty: Consolidated language versions’.)
Ralf Grahn
P.S. Embarking on the long journey to explore our fundamental common rules as rendered by the Treaty on the Functioning of the European Union, I want to repeat my plea for information on the law and politics of the Lisbon reform treaty.
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and other resources, such as official documents from the member states’ governments and parliaments, popular presentations and scholarly research literature, plus information on the ratification processes.
The IGC 2007 returned to the unfinished business left by the aborted ratification process of the Treaty establishing a Constitution for Europe.
Already in the context of the Convention and the Constitutional Treaty there were calls from pundits for an overhaul of the policies of the EU, and some echo from European leaders, but the national leaders seem to have been overwhelmed by the challenge to bring this stage of institutional reform to a close.
Thus, the main thrust of the Lisbon Treaty reform is institutional: to improve decision making within areas where the European Union (EU) and the European Community (EC) already exercise powers delegated by the member states.
If the Treaty of Lisbon survives the gauntlet of 27 national ratifications, the more mundane task of reforming the practical policies of the EU might raise enough of politicians’ interest to allow an overdue modernising exercise.
***
Article 2 of the Treaty of Lisbon contains the amendments to the Treaty establishing the European Community (TEC), which is renamed the Treaty on the Functioning of the European Union (TFEU).
Many of the changes to the TFEU are caused by the reordering of the treaties, with the Treaty on European Union (TEU) becoming home to the constitutional principles and objectives of the European Union and the fundamental provisions on the institutions. In addition, the continuing separateness of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) is given emphasis by housing them in the TEU.
Besides the reordering, renaming of various concepts leads to a fair amount of amendments throughout the TFEU, but most of the changes are rather technical. The Treaty of Lisbon is no profound reform of EU policies, although the area of freedom, security and justice is united under normal rules for the countries without derogations and opt-outs, and some additional tinkering and tidying up occur.
***
Why then bother to wade through the TFEU?
The treaties are the most important documents of the European Union. They lay the foundations for common action aiming to improve the security and prosperity of the citizens of the European Union. The rule of law means that every piece of legislation and every decision has to be based on the treaties.
The great questions of foreign and security policy may attract more media attention, but businesses and citizens are affected more directly by EU legislation and the everyday workings of the institutions.
Assuming that a reasonable amount of knowledge about the European Union is in the interest of private parties, then it is better to study the latest edition of our common rules. This leads us to the Treaty on the Functioning of the European Union (TFEU), as agreed on in the Lisbon Treaty. Even if the TFEU were to be hit by an accident never to enter into force, we would have gleaned some knowledge of the unreformed European Community (European Union).
***
Article 2 of the Treaty of Lisbon states that the Treaty establishing the European Community (TEC) shall be amended in accordance with the provisions of this Article (OJ 17.12.2007 C 306/41).
Following from the merger of the EC into the EU and the renewed structure of the treaties, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 then sets out a number of horizontal amendments, leading to editorial or technical adaptations throughout the TFEU. I just highlight some of the new terminology we might want to get used to:
The ‘Union’ replaces the words ‘Community’ and ‘European Community’
‘The Treaties’ replaces ‘this Treaty’ and ‘the present Treaty’
The ‘ordinary legislative procedure’ replaces the procedure referred to in Article 251
The ‘internal market’ replaces the ‘common market’
‘Euro’ replaces ‘ecu’
‘Member States whose currency is the euro’ replaces ‘Member State without derogation’
The ‘European Central Bank’ replaces the abbreviation ‘ECB’
‘Economic and Financial Committee’ replaces the Committee provided for in Article 114
‘Specialised court’ replaces ‘judicial panel’
‘Acting unanimously in accordance with a special legislative procedure’ is inserted where the existing treaty says ‘acting unanimously on a proposal from the Commission’
‘Acting by a simple majority’ is inserted into seven Articles
In two instances ‘obtaining the consent of the European Parliament’ replaces mere consultation
The ‘Court of Justice of the European Union’ becomes the official name, but sometimes the short form ‘Court’ is used
***
To these horizontal amendments of terminology are added the amendments concerning numbering and renumbering of the treaties, compounded by the less than reader-friendly drafting of the treaties themselves.
I salute the silent heroes who have produced the few consolidated language versions of the Treaty of Lisbon we already have. I wish that the versions still missing are produced and published soon. Brochures and web page summaries are important for the citizens of the EU, but they are far from enough.
(For the existing consolidations, as far as I know, see my latest compilation of sources, the 8 February 2008 posting ‘Lisbon Treaty: Consolidated language versions’.)
Ralf Grahn
P.S. Embarking on the long journey to explore our fundamental common rules as rendered by the Treaty on the Functioning of the European Union, I want to repeat my plea for information on the law and politics of the Lisbon reform treaty.
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and other resources, such as official documents from the member states’ governments and parliaments, popular presentations and scholarly research literature, plus information on the ratification processes.
Tuesday, 12 February 2008
Comprendre le Traité de Lisbonne
Jean-Luc Sauron was the first or one of the first to publish a book on the Treaty of Lisbon. The book, in French, is divided into two main parts.
First, there is a presentation and explanation of the reform process and the main provisions of the Reform Treaty, especially the new features. These 140 pages seem well adapted for interested citizens and students, who wish to find a suitable introduction.
Second, the rest of the book (pages 141 – 351) contains consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
The book contains a Preface written by the well known journalist and blogger Jean Quatremer.
Ralf Grahn
See:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
First, there is a presentation and explanation of the reform process and the main provisions of the Reform Treaty, especially the new features. These 140 pages seem well adapted for interested citizens and students, who wish to find a suitable introduction.
Second, the rest of the book (pages 141 – 351) contains consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
The book contains a Preface written by the well known journalist and blogger Jean Quatremer.
Ralf Grahn
See:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
EU Treaty of Lisbon: Official languages
The expansion of the European Communities and later the European Union are reflected in the growing number of Treaty languages, although the Treaty of the first community, the European Coal and Steel Community (ECSC), was drafted in an official version only in French, still the chosen language of European diplomacy during the first half of the 20th century.
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
Monday, 11 February 2008
EU Treaty of Lisbon: Ratification and entry into force
Reforming the European Union has become a ‘mission impossible’. First 27 governments with veto powers have to reach unanimous agreement. Then the Treaty signed has to run the gauntlet of just as many ratifications. Even one failure, and the process returns to square one.
How could such a house of cards become a Superstate in anybody’s mind?
***
The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):
Article 52
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.
***
In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):
Final provisions
Article 313
This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.
This Treaty shall enter into force on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step. If, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.
***
In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).
In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.
They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.
The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.
The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.
In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.
***
The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).
This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.
The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.
As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.
***
Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):
Article 6
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.
***
The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.
The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.
In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.
Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.
Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.
With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.
Ralf Grahn
How could such a house of cards become a Superstate in anybody’s mind?
***
The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):
Article 52
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.
***
In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):
Final provisions
Article 313
This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.
This Treaty shall enter into force on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step. If, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.
***
In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).
In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.
They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.
The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.
The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.
In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.
***
The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).
This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.
The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.
As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.
***
Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):
Article 6
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.
***
The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.
The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.
In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.
Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.
Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.
With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.
Ralf Grahn
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