We look at the strategic objectives of the European Union's customs union in the light of the current Treaty establishing the European Community and the Lisbon Treaty undergoing ratification in the member states.
***
Article 27 of the Treaty establishing the European Community (TEC), in Chapter 1 The customs union, presents the following aims, addressed to the Commission. The latest consolidated version of the current treaties is found in OJ 29.12.2006 C 321 E/52:
Article 27 TEC
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Community in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Community as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Community.
***
The intergovernmental conference did nothing to disturb these guidelines in the Treaty of Lisbon (ToL), so there are only a few light touches to apply to this provision to be able to read the consolidated version, as it appears in the Treaty on the Functioning of the European Union (TFEU). We bear in mind that ‘Community’ is replaced by ‘Union’, and that the final numbering of the TFEU differs from the Lisbon Treaty version:
Part Three Policies and internal actions of the Union
Title 1a (ToL), later Title II Free movement of goods
Chapter 1 (ToL and TFEU) The customs union
Article 27 TFEU (ToL), after renumbering Article 32 TFEU
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The intermediary stages in the treaty reform process were almost identical to the current and Lisbon Treaty wording:
Article III-40 Draft Constitution (OJ 18.7.2003 C 169/34)
Article 151(6) Constitution (OJ 16.12.2004 C 310/65)
***
The guidelines offered to the Commission are evident in part, with subparagraph (a) targeting external effects and subparagraph (b) aiming at improving competition internally.
The rise in global demand for energy, raw materials, water and food seems to outrun the resource base or the production capacity, which leads to higher prices. Scarcity increases the risk of unfair practices and serious disturbances as well as the possible need for reassessment of consumption patterns.
Like political objectives in general, the aims the Commission is ordered to follow can be contradictory in part. The real test is, as often, which guiding principles are ‘more guiding than others’.
The substantial objectives of the customs union are intrinsically linked to trade policy and internal market aims, but here we take a closer look at questions of more indirect import, focusing administrative developments of customs within the European Community (Union).
***
We assume that the reader is a non-specialist, who wants to get acquainted with the basic aims of the customs union.
The Commission’s ‘Customs strategy’ pages offer an introduction. The Commission proposes legislation, and there is a common customs border, but operations are carried out by 27 national customs administrations (working to fill the EU’s till). Customs and trade policy questions are intertwined. Smooth cooperation between different authorities and a paperless customs environment are present challenges.
The Commission’s customs strategy is from 2001, and there is a joint mission statement from the EU customs administrations (2005) as well as strategic aims and key actions. There are references to key documents for further study:
http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm
We take note of the page ‘International Customs Day 26 January 2008’ for two reasons. Customs are crucial in the fight against the trafficking of drugs and drugs precursors. In 2007 the European Community was admitted to the World Customs Organisation (WCO), on an ‘interim basis’ akin to the WCO members’ rights and obligations:
http://ec.europa.eu/taxation_customs/article_4709_en.htm
How the objectives in the customs policy area are reflected in customs legislation can be seen by looking at newish legislation in force, with the Community Customs Code and its implementing provisions highlighted as the basic legislation:
http://ec.europa.eu/taxation_customs/common/legislation/legislation/customs/index_en.htm
Proposed legislation is on offer through the page ‘Customs proposals (legislation)’:
http://ec.europa.eu/taxation_customs/common/legislation/proposals/customs/index_en.htm
Given the importance of the Community Customs Code and its implementing decisions, we are offered an explanatory framework ‘101’ by the Commission’s press release ‘Modernised Community Customs Code – Frequently Asked Questions’ (MEMO/08/101, 19 February 2008).
Then there is Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework). The general reader is encouraged to read the recitals (‘Whereas’), setting out the priorities of the Customs 2013 Programme.
Ralf Grahn
Tuesday, 18 March 2008
Monday, 17 March 2008
Fifth freedom? What about the basic ones?
The European Council was up to some grandstanding again at its spring gathering. The presidency conclusions brought us the following visions (Presidency conclusions, document 7652/08):
“In order to become a truly modern and competitive economy, and building on the work carried out on the future of science and technology and on the modernisation of universities, Member States and the EU must remove barriers to the free movement of knowledge by creating a "fifth freedom" based on:
• enhancing the cross-border mobility of researchers, as well as students, scientists, and university teaching staff,
• making the labour market for European researchers more open and competitive,
providing better career structures, transparency and family-friendliness,
• further implementing higher education reforms,
• facilitating and promoting the optimal use of intellectual property created in public research organisations so as to increase knowledge transfer to industry, in particular through an "IP Charter" to be adopted before the end of the year,
• encouraging open access to knowledge and open innovation,
• fostering scientific excellence,
• launching a new generation of world-class research facilities,
• promoting the mutual recognition of qualifications.”
***
Sounds fine, until you start thinking that Europeans are more than worker ants, toiling away to amass resources to be redistributed by politicians.
Four market freedoms of free movement are all right, but we Europeans are citizens, too. And when we pause to think about the European leadership in action, we come to the sad conclusion that they have cared little for our political and citizenship rights of late.
Are they the leaders who have shown no signs to open up the running for the presidency of the European Council or the High Representative for public scrutiny or democratic accountability?
Are they the leaders who profess the value of democracy both internally and externally, but show little signs of relinquishing the ‘managed democracy’ they have instituted at EU level?
Are these the same leaders who for months on end have stonewalled publishing the coming and now signed Lisbon Treaty in readable, consolidated versions, even if the amending treaty is the most important document to be produced within the European Union since 2004?
Are they the Commission and the European Parliament who have been content to let the Council keep the citizens in the dark?
Are they the European Parliament, which as an institution has sided with its ‘culturally diverse’ membership against calls for publishing and rooting out the squandering and misappropriation of public funds?
***
The common denominator for the questions above seems to be that less than free movement of knowledge has been the express desire of the honourable men (and women), who have taken upon themselves the burden to uphold their prerogatives.
By all means, remove barriers to the free movement of knowledge by creating a "fifth freedom", but start by giving EU citizens grown ups’ rights.
Ralf Grahn
“In order to become a truly modern and competitive economy, and building on the work carried out on the future of science and technology and on the modernisation of universities, Member States and the EU must remove barriers to the free movement of knowledge by creating a "fifth freedom" based on:
• enhancing the cross-border mobility of researchers, as well as students, scientists, and university teaching staff,
• making the labour market for European researchers more open and competitive,
providing better career structures, transparency and family-friendliness,
• further implementing higher education reforms,
• facilitating and promoting the optimal use of intellectual property created in public research organisations so as to increase knowledge transfer to industry, in particular through an "IP Charter" to be adopted before the end of the year,
• encouraging open access to knowledge and open innovation,
• fostering scientific excellence,
• launching a new generation of world-class research facilities,
• promoting the mutual recognition of qualifications.”
***
Sounds fine, until you start thinking that Europeans are more than worker ants, toiling away to amass resources to be redistributed by politicians.
Four market freedoms of free movement are all right, but we Europeans are citizens, too. And when we pause to think about the European leadership in action, we come to the sad conclusion that they have cared little for our political and citizenship rights of late.
Are they the leaders who have shown no signs to open up the running for the presidency of the European Council or the High Representative for public scrutiny or democratic accountability?
Are they the leaders who profess the value of democracy both internally and externally, but show little signs of relinquishing the ‘managed democracy’ they have instituted at EU level?
Are these the same leaders who for months on end have stonewalled publishing the coming and now signed Lisbon Treaty in readable, consolidated versions, even if the amending treaty is the most important document to be produced within the European Union since 2004?
Are they the Commission and the European Parliament who have been content to let the Council keep the citizens in the dark?
Are they the European Parliament, which as an institution has sided with its ‘culturally diverse’ membership against calls for publishing and rooting out the squandering and misappropriation of public funds?
***
The common denominator for the questions above seems to be that less than free movement of knowledge has been the express desire of the honourable men (and women), who have taken upon themselves the burden to uphold their prerogatives.
By all means, remove barriers to the free movement of knowledge by creating a "fifth freedom", but start by giving EU citizens grown ups’ rights.
Ralf Grahn
EU TFEU: Common Customs Tariff duties
The member states of the European Union have a common Community Customs Code, about to be replaced by a Modernised Customs Code, which aims to simplify customs operations in an increasingly paperless, electronic environment.
The Customs Code, further implementing acts and detailed decisions on tariffs are based on Article 26 of the Treaty establishing the European Community, preserved in the amending Lisbon Treaty.
***
The current Article 26 of the Treaty establishing the European Community (TEC) forms the legal base for setting customs tariff duties. We locate the provision in the latest consolidated edition of the existing treaties, OJ 29.12.2006 C 321 E/52:
Article 26 TEC
Common Customs Tariff duties shall be fixed by the Council acting by a qualified majority on a proposal from the Commission.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no express amendments to Article 26 TEC. Still, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU), the words ‘acting by a qualified majority’ are deleted according to horizontal amendment 2(d) and readers of later consolidated versions of the amended treaty are going to see the provision under a new number (as presented in the tables of equivalences, OJ 17.12.2007 C 306/207):
Article 26 TFEU (ToL), renumbered Article 31 TFEU
Common Customs Tariff duties shall be fixed by the Council on a proposal from the Commission.
***
There were minor differences in wording, but the previous stages of treaty reform were substantially the same as the provisions presented above:
Article III-39 Draft Constitution (OJ 18.7.2003 C 169/34).
Article III-151(5) Constitution (OJ 16.12.2004 C 310/65).
***
Two days ago I pointed the interested reader towards additional information including the following: The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Now we could take an additional step, by looking up what the European Parliament had to say about the Modernised Community Customs Code (MCCC).
The European Parliament, at second reading, without amendments approved the Council common position on the adoption of a regulation laying down the Community Customs Code (Modernised Customs Code):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0049+0+DOC+XML+V0//EN&language=EN
In all its formality, the EP legislative resolution presents a number of documents we can access, if we want to study the matter more closely. We choose to take a look at the Council common position (OJ 11.12.2007 C 298 E/1), found in the Official Journal, under Information and Notices:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=298E&Submit=Search&_submit=Search&ihmlang=en
The first four pages of reasons (‘Whereas’) offer the general reader an overview of the Community customs union as the basis for the specific decisions to be taken pursuant to Article 26 TFEU (ToL), renumbered Article 31 TFEU. The specialist may want to peruse all 68 pages of the Modernised Customs Code.
Ralf Grahn
.
The Customs Code, further implementing acts and detailed decisions on tariffs are based on Article 26 of the Treaty establishing the European Community, preserved in the amending Lisbon Treaty.
***
The current Article 26 of the Treaty establishing the European Community (TEC) forms the legal base for setting customs tariff duties. We locate the provision in the latest consolidated edition of the existing treaties, OJ 29.12.2006 C 321 E/52:
Article 26 TEC
Common Customs Tariff duties shall be fixed by the Council acting by a qualified majority on a proposal from the Commission.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no express amendments to Article 26 TEC. Still, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU), the words ‘acting by a qualified majority’ are deleted according to horizontal amendment 2(d) and readers of later consolidated versions of the amended treaty are going to see the provision under a new number (as presented in the tables of equivalences, OJ 17.12.2007 C 306/207):
Article 26 TFEU (ToL), renumbered Article 31 TFEU
Common Customs Tariff duties shall be fixed by the Council on a proposal from the Commission.
***
There were minor differences in wording, but the previous stages of treaty reform were substantially the same as the provisions presented above:
Article III-39 Draft Constitution (OJ 18.7.2003 C 169/34).
Article III-151(5) Constitution (OJ 16.12.2004 C 310/65).
***
Two days ago I pointed the interested reader towards additional information including the following: The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Now we could take an additional step, by looking up what the European Parliament had to say about the Modernised Community Customs Code (MCCC).
The European Parliament, at second reading, without amendments approved the Council common position on the adoption of a regulation laying down the Community Customs Code (Modernised Customs Code):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0049+0+DOC+XML+V0//EN&language=EN
In all its formality, the EP legislative resolution presents a number of documents we can access, if we want to study the matter more closely. We choose to take a look at the Council common position (OJ 11.12.2007 C 298 E/1), found in the Official Journal, under Information and Notices:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=298E&Submit=Search&_submit=Search&ihmlang=en
The first four pages of reasons (‘Whereas’) offer the general reader an overview of the Community customs union as the basis for the specific decisions to be taken pursuant to Article 26 TFEU (ToL), renumbered Article 31 TFEU. The specialist may want to peruse all 68 pages of the Modernised Customs Code.
Ralf Grahn
.
Sunday, 16 March 2008
EU TFEU: Customs union
Within the internal market customs duties on imports and exports are banned. But in addition to these obvious prohibitions other charges or ‘taxes’ can have discriminatory effects. The Court of Justice has repeatedly drawn the line between genuine measures and discriminatory practices.
***
Article 25 of the Treaty establishing the European Community (TEC) is one of the provisions left alone by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). In the renamed Treaty on the Functioning of the European Union (TFEU) the Article number is initially preserved, but in later versions of the treaty the provision will appear as Article 30 (OJ 17.12.2006 C 306/207):
Part Three Union policies and internal actions
Title II Free movement of goods
Chapter 1 The customs union
Article 25 TFEU (ToL), renumbered Article 30 TFEU
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
***
The unchanged provision can be followed through the preceding stages:
Article 25 TEC in OJ 29.12.2006 C 321 E/52.
Article III-38 Draft Constitution in OJ 18.7.2003 C 169/34.
Article III-151(4) Constitution in OJ 16.12.2004 C 310/65.
***
As a customs union the European Community (in the future the European Union) has a common customs border in relation to third countries.
Within the customs union customs duties are prohibited on both imports and exports.
This prohibition is extended to all discriminatory measures, whatever they are called. For instance inspection charges on imported goods or ‘taxes’ targeting imports unfairly compared to domestic products are prohibited. A measure is judged not by its name, but by its effects.
Since taxation is largely a matter for the member states, and the efforts to harmonise taxation have yielded fairly modest results, the Court of Justice (to be known as the Court of Justice of the European Union, CJEU) has frequently had to pronounce legislative acts of member states to be contrary to the prohibition.
***
If your business wants support or advice on business opportunities within the European Union or information on EU legislation, you can turn to one of the 600 partner organisations of the Enterprise Europe Network, in 40 countries, launched in February 2008, but building on previous experience.
More about the Enterprise Europe Network on:
http://www.enterprise-europe-network.ec.europa.eu/index_en.htm
***
A citizen or business facing problems caused by misapplication of internal market law by public authorities can use the good offices of the SOLVIT network to solve problems without legal proceedings:
http://ec.europa.eu/solvit/site/index_en.htm
***
Discriminating charges having equivalent effect, including customs duties of a fiscal nature, between member states are less a question of misapplication of EC legislation and more of mis-legislation. Therefore the Court of Justice has often been called on to draw the lines between prohibited and justified national measures.
The handy Alphabetical Table of Subject-matter (Table alphabétique des matières) covers the volumes from 1985 to 2001. Unfortunately it is available only in French, but under ‘Droits de douane et taxes d’effet équivalent’ you find more than four tightly spaced pages of cited cases:
http://curia.europa.eu/fr/content/outils/tm.pdf
Without the ECJ as the final arbiter individuals and businesses would often lack the means to effectively challenge discriminating legislation.
Ralf Grahn
***
Article 25 of the Treaty establishing the European Community (TEC) is one of the provisions left alone by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). In the renamed Treaty on the Functioning of the European Union (TFEU) the Article number is initially preserved, but in later versions of the treaty the provision will appear as Article 30 (OJ 17.12.2006 C 306/207):
Part Three Union policies and internal actions
Title II Free movement of goods
Chapter 1 The customs union
Article 25 TFEU (ToL), renumbered Article 30 TFEU
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
***
The unchanged provision can be followed through the preceding stages:
Article 25 TEC in OJ 29.12.2006 C 321 E/52.
Article III-38 Draft Constitution in OJ 18.7.2003 C 169/34.
Article III-151(4) Constitution in OJ 16.12.2004 C 310/65.
***
As a customs union the European Community (in the future the European Union) has a common customs border in relation to third countries.
Within the customs union customs duties are prohibited on both imports and exports.
This prohibition is extended to all discriminatory measures, whatever they are called. For instance inspection charges on imported goods or ‘taxes’ targeting imports unfairly compared to domestic products are prohibited. A measure is judged not by its name, but by its effects.
Since taxation is largely a matter for the member states, and the efforts to harmonise taxation have yielded fairly modest results, the Court of Justice (to be known as the Court of Justice of the European Union, CJEU) has frequently had to pronounce legislative acts of member states to be contrary to the prohibition.
***
If your business wants support or advice on business opportunities within the European Union or information on EU legislation, you can turn to one of the 600 partner organisations of the Enterprise Europe Network, in 40 countries, launched in February 2008, but building on previous experience.
More about the Enterprise Europe Network on:
http://www.enterprise-europe-network.ec.europa.eu/index_en.htm
***
A citizen or business facing problems caused by misapplication of internal market law by public authorities can use the good offices of the SOLVIT network to solve problems without legal proceedings:
http://ec.europa.eu/solvit/site/index_en.htm
***
Discriminating charges having equivalent effect, including customs duties of a fiscal nature, between member states are less a question of misapplication of EC legislation and more of mis-legislation. Therefore the Court of Justice has often been called on to draw the lines between prohibited and justified national measures.
The handy Alphabetical Table of Subject-matter (Table alphabétique des matières) covers the volumes from 1985 to 2001. Unfortunately it is available only in French, but under ‘Droits de douane et taxes d’effet équivalent’ you find more than four tightly spaced pages of cited cases:
http://curia.europa.eu/fr/content/outils/tm.pdf
Without the ECJ as the final arbiter individuals and businesses would often lack the means to effectively challenge discriminating legislation.
Ralf Grahn
Saturday, 15 March 2008
EU TFEU: Free circulation of imported goods
Once goods imported into the European Union have cleared customs border control, they are allowed to circulate freely within the EU, subject to the same rules and restrictions which apply to Community products.
***
Article 24 of the Treaty establishing the European Communities (TEC) offers us the opportunity to see a provision untouched by the intergovernmental conference (IGC 2007). The name of the treaty changes to the Treaty on the Functioning of the European Union (TFEU), and there were changes when Part Three was named Policies and internal actions of the Union, and Title I The internal market was inserted.
As shown in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (ToL), most provisions have been given a number initially, but will be given a new, more palatable number in coming consolidated versions of the treaties.
Thus, Article 24 TEC is numbered 24 in TFEU (ToL), but will be renumbered Article 29 TFEU (OJ 29.12.2007 C 306/206), but even the horizontal amendments leave the wording alone.
Here is the text (OJ 29.12.2006 C 321 E/51 for the latest consolidated version of the current treaties):
Article 24 TFEU (ToL), after renumbering Article 29 TFEU
Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe is Article III-37. The wording is identical, which you can check by looking up OJ 18.7.2003 C 169/33.
The Treaty establishing a Constitution for Europe presented five different Articles as one, but Article III-151(3) reproduces exactly the same wording as the Article under discussion (OJ 16.12.2004 C 310/65).
***
But the third country exporter or the EU importer needs to know how to get the products legally into the European Community (European Union) and thus into free circulation. There are three cumulative criteria to fulfil before imported goods are cleared for free circulation within the European Community:
1) Import ‘formalities’ have to be complied with.
2) Customs duties and other charges have to be paid.
3) The goods have not benefited from drawback of duties or charges.
A few pointers:
Customs authorities play a crucial role. ‘Import formalities’ are much more than what the word ‘formality’ would lead one to believe. In addition to customs duties, Customs officials implement and enforce Community legislation concerning commercial policy measures (quotas, anti-dumping, pirated goods) as well as security, environmental, consumer protection, cultural and agricultural controls. The following Commission web page offers a quick introduction:
http://ec.europa.eu/taxation_customs/customs/customs_controls/general/index_en.htm
The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Once goods from third countries have cleared import requirements and duties, they are allowed to circulate freely in the internal market (single market). The Commission published an introduction to the single market 14 March 2008, a 20 page brochure aimed at the general reader: Single market for goods – Information pack 2008. Available at:
http://ec.europa.eu/enterprise/regulation/goods/docs/single_mk_info_08/2007_5598_en.pdf
These introductions serve as a base for more detailed information gathering.
Ralf Grahn
***
Article 24 of the Treaty establishing the European Communities (TEC) offers us the opportunity to see a provision untouched by the intergovernmental conference (IGC 2007). The name of the treaty changes to the Treaty on the Functioning of the European Union (TFEU), and there were changes when Part Three was named Policies and internal actions of the Union, and Title I The internal market was inserted.
As shown in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (ToL), most provisions have been given a number initially, but will be given a new, more palatable number in coming consolidated versions of the treaties.
Thus, Article 24 TEC is numbered 24 in TFEU (ToL), but will be renumbered Article 29 TFEU (OJ 29.12.2007 C 306/206), but even the horizontal amendments leave the wording alone.
Here is the text (OJ 29.12.2006 C 321 E/51 for the latest consolidated version of the current treaties):
Article 24 TFEU (ToL), after renumbering Article 29 TFEU
Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe is Article III-37. The wording is identical, which you can check by looking up OJ 18.7.2003 C 169/33.
The Treaty establishing a Constitution for Europe presented five different Articles as one, but Article III-151(3) reproduces exactly the same wording as the Article under discussion (OJ 16.12.2004 C 310/65).
***
But the third country exporter or the EU importer needs to know how to get the products legally into the European Community (European Union) and thus into free circulation. There are three cumulative criteria to fulfil before imported goods are cleared for free circulation within the European Community:
1) Import ‘formalities’ have to be complied with.
2) Customs duties and other charges have to be paid.
3) The goods have not benefited from drawback of duties or charges.
A few pointers:
Customs authorities play a crucial role. ‘Import formalities’ are much more than what the word ‘formality’ would lead one to believe. In addition to customs duties, Customs officials implement and enforce Community legislation concerning commercial policy measures (quotas, anti-dumping, pirated goods) as well as security, environmental, consumer protection, cultural and agricultural controls. The following Commission web page offers a quick introduction:
http://ec.europa.eu/taxation_customs/customs/customs_controls/general/index_en.htm
The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Once goods from third countries have cleared import requirements and duties, they are allowed to circulate freely in the internal market (single market). The Commission published an introduction to the single market 14 March 2008, a 20 page brochure aimed at the general reader: Single market for goods – Information pack 2008. Available at:
http://ec.europa.eu/enterprise/regulation/goods/docs/single_mk_info_08/2007_5598_en.pdf
These introductions serve as a base for more detailed information gathering.
Ralf Grahn
Friday, 14 March 2008
Åland in the European Union
A potential problem on the path towards ratification of the Treaty of Lisbon, the Åland Islands (population 27,000) have made their appearance in international discussion surrounding the treaty.
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
EU TFEU: Free movement of goods
The European Community is more than a free trade area. The EC (in the future the EU) is a customs union with a common customs border in relation to third countries. Once a product has legally entered the EC, it can circulate freely within the Community.
Customs duties between the member states are prohibited. So are all charges having equivalent effect (including penalising taxes) as well as quantitative restrictions (quotas) on goods from member states or emanating from third countries but in free circulation in member states.
The Treaty of Lisbon preserves and protects these fundamental principles of the free movement of goods, with some changes of order and terminology.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) added the following light touches to Article 23 of the Treaty on establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (Official Journal, OJ, 17.12.2007 C 306/52):
43) Title I on the free movement of goods shall become Title Ia.
44) In Article 23(1), the words ‘shall be based upon’ shall be replaced by ‘shall comprise’.
***
The less is said about an amended Article, the more we are dependent on the current provision. Article 23 TEC looks like this (in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/51):
PART THREE
COMMUNITY POLICIES
TITLE I
FREE MOVEMENT OF GOODS
Article 23 TEC
1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 and of Chapter 2 of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
The context and the contents of the amended Article should be the following when the Lisbon Treaty is consolidated, after replacing ‘Community’ by ‘Union’ according to horizontal amendment 2(a), replacing the words as instructed above and checking the referrals in the second paragraph:
Part Three Policies and internal actions of the Union
Title 1a TFEU (ToL), new numbering Title II Free movement of goods
Article 23 TFEU (ToL), after renumbering Article 28 TFEU
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 [TFEU (ToL, renumbered Article 30 TFEU] and of Chapter 2 [TFEU (ToL), after renumbering Chapter 3 Prohibition of quantitative restrictions between Member States, TFEU] of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
For the sake of easy comparison we look up the corresponding Article in the draft Treaty establishing a Constitution for Europe proposed by the European Convention (OJ 18.7.2003 C 169/33):
SECTION 3
Free movement of goods
Subsection 1
Customs union
Article III-36
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Article III-38 and Subsection 3 of this Section shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
Without disturbing the contents, the IGC 2004 chose to present the customs union differently, building the equivalent of Articles 23 to 27 TEC and Articles III-36 to III-40 Draft Constitution into one long Article. Although only the first and the second paragraph correspond directly with the provisions we are presenting, offering the full contents of Article III-151 Constitution allows the reader to see a greater whole at a glance (OJ 16.12.2004 C 310/64-65):
SECTION 3
FREE MOVEMENT OF GOODS
Subsection 1
Customs union
Article III-151
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Paragraph 4 and Subsection 3 on the prohibition of quantitative restrictions shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
3. Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
4. Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
5. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions fixing Common Customs Tariff duties.
6. In carrying out the tasks entrusted to it under this Article the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union insofar as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi-finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The UK House of Lords European Union Committee has a wonderful introduction, both general and topical, to the single market in its report “The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market”.
Ralf Grahn
Recommended reading:
UK House of Lords European Union Committee: The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market; Volume I: Report; 5th Report of Session 2007-08; HL Paper 36-I; Published 8 February 2008.
Available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/36/36.pdf
Read from the Foreword to Chapter 4: General Conclusions (pages 1 – 21). In addition, the report looks in depth at three important sectors: energy, telecommunications and financial services. Volume II (HL Paper 36-I) contains the evidence (which is not restricted to national sources).
Customs duties between the member states are prohibited. So are all charges having equivalent effect (including penalising taxes) as well as quantitative restrictions (quotas) on goods from member states or emanating from third countries but in free circulation in member states.
The Treaty of Lisbon preserves and protects these fundamental principles of the free movement of goods, with some changes of order and terminology.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) added the following light touches to Article 23 of the Treaty on establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (Official Journal, OJ, 17.12.2007 C 306/52):
43) Title I on the free movement of goods shall become Title Ia.
44) In Article 23(1), the words ‘shall be based upon’ shall be replaced by ‘shall comprise’.
***
The less is said about an amended Article, the more we are dependent on the current provision. Article 23 TEC looks like this (in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/51):
PART THREE
COMMUNITY POLICIES
TITLE I
FREE MOVEMENT OF GOODS
Article 23 TEC
1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 and of Chapter 2 of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
The context and the contents of the amended Article should be the following when the Lisbon Treaty is consolidated, after replacing ‘Community’ by ‘Union’ according to horizontal amendment 2(a), replacing the words as instructed above and checking the referrals in the second paragraph:
Part Three Policies and internal actions of the Union
Title 1a TFEU (ToL), new numbering Title II Free movement of goods
Article 23 TFEU (ToL), after renumbering Article 28 TFEU
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 [TFEU (ToL, renumbered Article 30 TFEU] and of Chapter 2 [TFEU (ToL), after renumbering Chapter 3 Prohibition of quantitative restrictions between Member States, TFEU] of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
For the sake of easy comparison we look up the corresponding Article in the draft Treaty establishing a Constitution for Europe proposed by the European Convention (OJ 18.7.2003 C 169/33):
SECTION 3
Free movement of goods
Subsection 1
Customs union
Article III-36
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Article III-38 and Subsection 3 of this Section shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
Without disturbing the contents, the IGC 2004 chose to present the customs union differently, building the equivalent of Articles 23 to 27 TEC and Articles III-36 to III-40 Draft Constitution into one long Article. Although only the first and the second paragraph correspond directly with the provisions we are presenting, offering the full contents of Article III-151 Constitution allows the reader to see a greater whole at a glance (OJ 16.12.2004 C 310/64-65):
SECTION 3
FREE MOVEMENT OF GOODS
Subsection 1
Customs union
Article III-151
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Paragraph 4 and Subsection 3 on the prohibition of quantitative restrictions shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
3. Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
4. Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
5. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions fixing Common Customs Tariff duties.
6. In carrying out the tasks entrusted to it under this Article the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union insofar as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi-finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The UK House of Lords European Union Committee has a wonderful introduction, both general and topical, to the single market in its report “The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market”.
Ralf Grahn
Recommended reading:
UK House of Lords European Union Committee: The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market; Volume I: Report; 5th Report of Session 2007-08; HL Paper 36-I; Published 8 February 2008.
Available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/36/36.pdf
Read from the Foreword to Chapter 4: General Conclusions (pages 1 – 21). In addition, the report looks in depth at three important sectors: energy, telecommunications and financial services. Volume II (HL Paper 36-I) contains the evidence (which is not restricted to national sources).
Thursday, 13 March 2008
EU TFEU: Internal market softeners and derogations
The competitiveness of member states’ economies varies hugely, and efforts enhance competition within the European Union may affect them differently. The Commission has the responsibility to take these differences into account, when it draws up its proposals for the internal market. This can happen through the standards set, or by transitory periods, or they can accommodate certain members by temporary derogations (exemptions).
These softeners, or ‘safety valve’ principles form an integral part of rule making for the single market.
In addition, we get a bird’s eye view of the whole treaty reform process, leading up to the Union policies and internal actions as agreed in the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference amended Article 15 of the Treaty establishing the European Community (TEC), which was adopted as Article 22b of the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (OJ 17.12.2007 C 306/52):
42) An Article 22b shall be inserted, with the wording of Article 15. In the first paragraph, the words ‘during the period of establishment’ shall be replaced by ‘for the establishment’.
***
Even minimal amendments, indeed, especially these, require recourse to the current TEC to make sense (so we turn to the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/49):
Article 15 TEC
When drawing up its proposals with a view to achieving the objectives set out in Article 14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain during the period of establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the common market.
***
We keep in mind that we study Part Three Union policies and internal actions, Title I The internal market, of the TFEU.
Our following task is to consolidate the Article, merging existing contents with amendments, and taking into account that the ToL uses one set of numbering, but indicates a new numbering for future consolidated versions of the treaties (in the tables of eqivalences). The end result should look like this:
Article 22b TFEU (ToL), after renumbering Article 27 TFEU
When drawing up its proposals with a view to achieving the objectives set out in Article 22a [TFEU (ToL), after renumbering Article 26 TFEU], the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
After spanning the whole distance from the current TEC to the new TFEU, we take a look at two of the individual arches in between, the draft Constitution and the Constitution.
Perhaps a few preliminary general comments are in order. The treaty reform process can be seen as continuous. You can choose to look at the Treaty of Maastricht (Treaty on European Union, TEU) as a first, remarkable stage, which however left unfinished business to which were later added the fact and the prospect of enlargement. These questions were only in part remedied by the Treaty of Amsterdam and the Treaty of Nice, attested to by the fact that the same European Council which agreed on the Nice Treaty felt the need to declare the need for continued reform. With this interpretation we have a more or less continuing reform process from about 1990 until today (2008).
The other point of view would be to see the unsatisfactory Treaty of Nice (signed 2001) as the starting point for a new reform process, with the Declaration of Laeken, the European Convention and its draft Constitution, the IGC 2004 and the Constitutional Treaty, and the retrenchment after failed ratification and the partial relaunch by the IGC 2007 leading to the Lisbon Treaty as the principal stages. Even this shorter history of treaty reform, from December 2000 (Nice) until today (early 2008), presents the picture of seven lean years since no substantial changes have been harvested, namely entered into force (although the accession treaties of 2003 and 2005 should be remembered).
The common denominator has been institutional all along, with decision making structures of the European Union in focus.
The two high points were, in my opinion:
1) The convention method and the work of the first Convention leading to the Charter of Fundamental Rights, and the European Convention (the second one), which produced the draft Constitution. Without being perfect, they embodied more democratic legitimacy than any attempt since the Spinelli draft (1984).
2) The Treaty establishing a Constitution for Europe (2004), where the IGC 2004 achieved some technical improvements and subtracted a few substantial ones, was still remarkable in that it promised substantial reform and a fairly well organised and readable text (although overly long).
Having read countless stories on the ‘failed Constitution’, I think it is time to make a distinction. The Constitutional Treaty was not a failure. Actually, it was as good as it gets at this stage of development, given the strictures of unanimous decision making in a large forum of disparate member states.
Only the ratification process failed, falling victim to the almost impossible requirement to get any meaningful reform approved constitutionally in 27 member states.
The end result is, after the relaunch, the Lisbon Treaty, a sort of ‘Zombie Constitution’, with most of the material contents of the Constitutional Treaty, but without its soul. In addition, the vestments are tattered, riven into a myriad of separate amendments. Only when consolidated versions of the Treaty of Lisbon appear, can a citizen of the EU read and begin to understand the most important document of the European Union since 2004.
The last leg of this ‘scenic route’ takes us back to the policies and internal actions of the European Union.
Because the focus during the whole reform process has been on decision making and institutional issues, the policy areas and internal actions of the EU, including the internal market, have mainly been reorganised and tidied up, without much substantial reform (with the area of freedom, security and justice the most notable exception).
Therefore, the study of the new EU policies ‘de lege ferenda’ is very much the study of existing Community policies ‘de lege lata’, with some new terminology and a few nuances thrown in for good measure. (Calls for a reform of the substantial areas of action have been heard, but the European leaders have been silent lately. A number of member states signalled the need to reform the Euratom Treaty, treated even more like a stepchild or afterthought by various reform conclaves.)
In other words, do not be surprised if you find few surprises, but still there is cause to study the internal EU actions as they are meant to be, and the preceding stages.
***
The European Convention proposed the following in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-15 Draft Constitution
When drawing up its proposals with a view to achieving the objectives set out in Article III-14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The Treaty establishing a Constitution for Europe merged two Articles of the draft, so technically we compare the text of its fourth paragraph with draft Article III-15, but reading the whole Article III-130 of the Constitutional Treaty reminds us of the context (OJ 16.12.2004 C 310/58):
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
You are now free to make your own comparison. If you find that the changes from the present TEC to the Lisbon Treaty are of less than mind-boggling proportions, you may be right.
***
For those who want to compare the Treaty of Lisbon with its immediate predecessor, the Constitutional Treaty, there is now a technically advanced alternative available, with differences highlighted.
The bulky Part III of the Constitution, The policies and functioning of the Union, largely corresponding to the TFEU we are studying, has just been launched side by side with the Lisbon Treaty provisions.
This commendable work of an Anonymous compiler is of great service for everyone interested in the latest EU treaty developments. Instead of anonymity he or she should get public recognition. Go to Constitreaty:
http://www.constitreaty.com
***
Article 22b TFEU (ToL), after renumbering Article 27 TFEU, like its predecessors, offers a ‘safety valve’, when proposals to achieve the internal market leading to fiercer competition put too much strain on some (lesser developed) economies. The Commission is given the responsibility to take the effects of its proposals into account.
Basically, the general standards to achieve may be set sufficiently low to allow the less competitive economies to pass muster, or offer transitory periods to achieve higher norms (for instance safety or environmental requirements).
On the other hand, individual derogations (exemptions) are possible according to paragraph 2. These are meant to give one or more member states a grace period to catch up with the others, but they have to fulfil two criteria:
1) They must be temporary.
2) They must cause the internal market the least possible disturbance, namely distort competition as little as possible under the circumstances. In other words, the derogations must pass the test of proportionality.
Within these parameters the Commission and the legislators, the Council and the European Parliament, have wide powers to judge the (political) expediency of the measures.
Ralf Grahn
These softeners, or ‘safety valve’ principles form an integral part of rule making for the single market.
In addition, we get a bird’s eye view of the whole treaty reform process, leading up to the Union policies and internal actions as agreed in the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference amended Article 15 of the Treaty establishing the European Community (TEC), which was adopted as Article 22b of the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (OJ 17.12.2007 C 306/52):
42) An Article 22b shall be inserted, with the wording of Article 15. In the first paragraph, the words ‘during the period of establishment’ shall be replaced by ‘for the establishment’.
***
Even minimal amendments, indeed, especially these, require recourse to the current TEC to make sense (so we turn to the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/49):
Article 15 TEC
When drawing up its proposals with a view to achieving the objectives set out in Article 14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain during the period of establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the common market.
***
We keep in mind that we study Part Three Union policies and internal actions, Title I The internal market, of the TFEU.
Our following task is to consolidate the Article, merging existing contents with amendments, and taking into account that the ToL uses one set of numbering, but indicates a new numbering for future consolidated versions of the treaties (in the tables of eqivalences). The end result should look like this:
Article 22b TFEU (ToL), after renumbering Article 27 TFEU
When drawing up its proposals with a view to achieving the objectives set out in Article 22a [TFEU (ToL), after renumbering Article 26 TFEU], the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
After spanning the whole distance from the current TEC to the new TFEU, we take a look at two of the individual arches in between, the draft Constitution and the Constitution.
Perhaps a few preliminary general comments are in order. The treaty reform process can be seen as continuous. You can choose to look at the Treaty of Maastricht (Treaty on European Union, TEU) as a first, remarkable stage, which however left unfinished business to which were later added the fact and the prospect of enlargement. These questions were only in part remedied by the Treaty of Amsterdam and the Treaty of Nice, attested to by the fact that the same European Council which agreed on the Nice Treaty felt the need to declare the need for continued reform. With this interpretation we have a more or less continuing reform process from about 1990 until today (2008).
The other point of view would be to see the unsatisfactory Treaty of Nice (signed 2001) as the starting point for a new reform process, with the Declaration of Laeken, the European Convention and its draft Constitution, the IGC 2004 and the Constitutional Treaty, and the retrenchment after failed ratification and the partial relaunch by the IGC 2007 leading to the Lisbon Treaty as the principal stages. Even this shorter history of treaty reform, from December 2000 (Nice) until today (early 2008), presents the picture of seven lean years since no substantial changes have been harvested, namely entered into force (although the accession treaties of 2003 and 2005 should be remembered).
The common denominator has been institutional all along, with decision making structures of the European Union in focus.
The two high points were, in my opinion:
1) The convention method and the work of the first Convention leading to the Charter of Fundamental Rights, and the European Convention (the second one), which produced the draft Constitution. Without being perfect, they embodied more democratic legitimacy than any attempt since the Spinelli draft (1984).
2) The Treaty establishing a Constitution for Europe (2004), where the IGC 2004 achieved some technical improvements and subtracted a few substantial ones, was still remarkable in that it promised substantial reform and a fairly well organised and readable text (although overly long).
Having read countless stories on the ‘failed Constitution’, I think it is time to make a distinction. The Constitutional Treaty was not a failure. Actually, it was as good as it gets at this stage of development, given the strictures of unanimous decision making in a large forum of disparate member states.
Only the ratification process failed, falling victim to the almost impossible requirement to get any meaningful reform approved constitutionally in 27 member states.
The end result is, after the relaunch, the Lisbon Treaty, a sort of ‘Zombie Constitution’, with most of the material contents of the Constitutional Treaty, but without its soul. In addition, the vestments are tattered, riven into a myriad of separate amendments. Only when consolidated versions of the Treaty of Lisbon appear, can a citizen of the EU read and begin to understand the most important document of the European Union since 2004.
The last leg of this ‘scenic route’ takes us back to the policies and internal actions of the European Union.
Because the focus during the whole reform process has been on decision making and institutional issues, the policy areas and internal actions of the EU, including the internal market, have mainly been reorganised and tidied up, without much substantial reform (with the area of freedom, security and justice the most notable exception).
Therefore, the study of the new EU policies ‘de lege ferenda’ is very much the study of existing Community policies ‘de lege lata’, with some new terminology and a few nuances thrown in for good measure. (Calls for a reform of the substantial areas of action have been heard, but the European leaders have been silent lately. A number of member states signalled the need to reform the Euratom Treaty, treated even more like a stepchild or afterthought by various reform conclaves.)
In other words, do not be surprised if you find few surprises, but still there is cause to study the internal EU actions as they are meant to be, and the preceding stages.
***
The European Convention proposed the following in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-15 Draft Constitution
When drawing up its proposals with a view to achieving the objectives set out in Article III-14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The Treaty establishing a Constitution for Europe merged two Articles of the draft, so technically we compare the text of its fourth paragraph with draft Article III-15, but reading the whole Article III-130 of the Constitutional Treaty reminds us of the context (OJ 16.12.2004 C 310/58):
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
You are now free to make your own comparison. If you find that the changes from the present TEC to the Lisbon Treaty are of less than mind-boggling proportions, you may be right.
***
For those who want to compare the Treaty of Lisbon with its immediate predecessor, the Constitutional Treaty, there is now a technically advanced alternative available, with differences highlighted.
The bulky Part III of the Constitution, The policies and functioning of the Union, largely corresponding to the TFEU we are studying, has just been launched side by side with the Lisbon Treaty provisions.
This commendable work of an Anonymous compiler is of great service for everyone interested in the latest EU treaty developments. Instead of anonymity he or she should get public recognition. Go to Constitreaty:
http://www.constitreaty.com
***
Article 22b TFEU (ToL), after renumbering Article 27 TFEU, like its predecessors, offers a ‘safety valve’, when proposals to achieve the internal market leading to fiercer competition put too much strain on some (lesser developed) economies. The Commission is given the responsibility to take the effects of its proposals into account.
Basically, the general standards to achieve may be set sufficiently low to allow the less competitive economies to pass muster, or offer transitory periods to achieve higher norms (for instance safety or environmental requirements).
On the other hand, individual derogations (exemptions) are possible according to paragraph 2. These are meant to give one or more member states a grace period to catch up with the others, but they have to fulfil two criteria:
1) They must be temporary.
2) They must cause the internal market the least possible disturbance, namely distort competition as little as possible under the circumstances. In other words, the derogations must pass the test of proportionality.
Within these parameters the Commission and the legislators, the Council and the European Parliament, have wide powers to judge the (political) expediency of the measures.
Ralf Grahn
Wednesday, 12 March 2008
Lisbon Treaty ratification: Finland without Åland Islands?
Eleven local legislators out of 30 would be enough to fail the required two thirds majority in the Åland Islands, but would Finland desist from ratifying the Treaty of Lisbon if the regional parliament (lagtinget) of the autonomous Åland Islands refrained from giving its consent?
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
EU TFEU: Internal market
Entrepreneurs and businesses may have found little of direct interest in the institutional wrangling over institutional issues of the European Union, except for the realisation that improved workings of the EU provide a better framework for decisions concerning the security of firms and individuals, too.
The Lisbon Treaty preserves and modernises the treaty provisions of more immediate interest to persons who work within the Union, who trade in goods or services within the large free trade area or who invest outside their national borders.
The key concepts are the ‘internal market’ and the ‘four freedoms’.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) marked the transition to a new and substantial part of the Treaty establishing the European Community (TEC). Under its new name, the Treaty on the functioning of the European Union (TFEU), sports new headings for the Part and its first Title (OJ 17.12.2007 C 306/52):
39) In the heading of Part Three, the words ‘AND INTERNAL ACTIONS’ shall be inserted after ‘POLICIES’.
INTERNAL MARKET
40) A Title I, with the heading ‘THE INTERNAL MARKET’ shall be inserted at the beginning of Part Three.
41) An Article 22a shall be inserted, with the wording of Article 14. Paragraph 1 shall be replaced by the following:
‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.’.
***
In order to understand the intended changes, we go to Part One Principles and the Article being amended, Article 14 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/48-49):
Article 14 TEC
1. The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 15, 26, 47(2), 49, 80, 93 and 95 and without prejudice to the other provisions of this Treaty.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.
3. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
Our aim is to find out what the amended treaty is supposed to look like. This we do by merging the express and horizontal (points 2(a), 2(b) and 2(d)) amendments with the current text as well as checking the future numbering of the Article:
Part Three Union policies and internal actions
Title I The internal market
Article 22a TFEU (ToL), renumbered Article 26 TFEU
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
For the sake of easy comparison we take note of the preceding stages of treaty reform. The European Convention, in Part III The policies and functioning of the Union, placed Title III Internal policies and action, Chapter 1 Internal market, Section 1 Establishment of the Internal Market, with Article III-14 (OJ 18.7.2003 C 169/30):
TITLE III
INTERNAL POLICIES AND ACTION
Chapter I
Internal market
Section 1
Establishment of the Internal Market
Article III-14 Draft Constitution
1. The Union shall adopt measures with the aim of establishing the internal market, in accordance with this Article, Article III-15, Article III-26(1) and Articles III-29, III-39, III-62, III-65 and III-143 and without prejudice to the other provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Constitution.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
The IGC 2004 shared this systematic approach, but merged the draft Constitution Articles III-14 and III-15 into one (OJ 16.12.2004 C 310/58):
TITLE III
INTERNAL POLICIES AND ACTION
CHAPTER I
INTERNAL MARKET
SECTION 1
ESTABLISHMENT AND FUNCTIONING OF THE INTERNAL MARKET
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The common market turned from a noble aim to an achievable goal when measures based on qualified majority voting became possible after the (initially twelve year) transitory period.
The original ‘common market’ and the later ‘internal market’ are both in use in the TEC (depending on when a provision was born), but according to horizontal amendment 2(g) of the Lisbon Treaty the words ‘common market’ shall be replaced by ‘internal market’ (throughout the Treaties).
The draft Constitution still mentioned the ‘aim of establishing the internal market’, but it relinquished the TEC mention of the target date ’31 December 1992’, linked to the Single European Act (1986).
The Constitution took the draft text one step further by ‘establishing or ensuring the functioning of the internal market’ in paragraph 1. In essence, the Lisbon Treaty adopts this text.
***
The ‘four freedoms’ in paragraph 2 form the core of the internal market, and it is religiously upheld in every version from the current TEC (actually from the Treaty of Rome) to the Lisbon Treaty: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty (now ‘the Treaties’).
If there is one thing every citizen of the European Union should know about EU law, in addition to the main institutional arrangements, it is the ‘four freedoms’:
The free movement of
Goods
Persons
Services
Capital
The four freedoms were present at the birth of the original EEC Treaty (Rome Treaty), then as the ‘common market’, and given added boost by the Single European Act. The target date of 31 December 1992 was important, but a seamless internal market is a perpetual quest.
The internal market may not work perfectly, and the tens of thousands of pages of secondary legislation may seem like a nightmare, but think of the alternatives.
Fifty years of efforts have brought about unprecedented harmonisation and recognition of standards within the European Community (Union).
The enlargement of the European Economic Community (EEC) of six into a European Community (Union) of 27 member states with the added three members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway, has led to the largest and most advanced free trade area of the world.
The ‘tons of EC rules’ (directives) achieve some sort of proportions if you think that you or your firm would have to grapple with 30 different rulebooks.
The attraction of the internal market does not stop at the present EU borders. A few states are officially on course for membership, adapting to the common rules. Then there is a number of prospective applicants pursuing voluntary harmonisation.
Some sort of influence is spread through various cooperation agreements: European Neighbourhood Policy, Mediterranean policy (Barcelona process), and African, Caribbean and Pacific states (APC).
European rules and standards are important enough to merit serious attention from exporters around the world. With existing internal concepts and a common trade policy, the European Union fills the basic requirements to ‘export’ its values in more formal settings, like bilateral and multilateral trade agreements.
Despite its imperfections, the internal market is a global success story, built on the acceptance of supranational rules as means to enhance common prosperity.
***
Since the foundation the specific legal bases for ‘measures’ is given in paragraph 1, someone may wonder what the ‘guidelines and conditions necessary to ensure balanced progress in all the sectors concerned’ in the third paragraph are all about.
Paragraph 3 seems to exist as an option for long term strategies or programmes, which would serve to improve the internal market and the balance between different industrial and service sectors. This would offer the Commission a framework for future preparatory work (but may be satisfactorily covered by existing policy and work programmes).
***
Even if the main thrust is one, essential, part of the internal market – competition – there is reason to take note of the Protocol on the internal market and competition, annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/154):
PROTOCOL
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 2 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
to this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 308 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
An introductory tour of the internal market can start from the EU Single Market web pages. Yes, the Commission seems to prefer the concept ‘single market’. Go to:
http://ec.europa.eu/internal_market/index_en.htm
This is a good starting point for ‘everything’, from the general policy framework to topical headlines.
Ralf Grahn
The Lisbon Treaty preserves and modernises the treaty provisions of more immediate interest to persons who work within the Union, who trade in goods or services within the large free trade area or who invest outside their national borders.
The key concepts are the ‘internal market’ and the ‘four freedoms’.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) marked the transition to a new and substantial part of the Treaty establishing the European Community (TEC). Under its new name, the Treaty on the functioning of the European Union (TFEU), sports new headings for the Part and its first Title (OJ 17.12.2007 C 306/52):
39) In the heading of Part Three, the words ‘AND INTERNAL ACTIONS’ shall be inserted after ‘POLICIES’.
INTERNAL MARKET
40) A Title I, with the heading ‘THE INTERNAL MARKET’ shall be inserted at the beginning of Part Three.
41) An Article 22a shall be inserted, with the wording of Article 14. Paragraph 1 shall be replaced by the following:
‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.’.
***
In order to understand the intended changes, we go to Part One Principles and the Article being amended, Article 14 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/48-49):
Article 14 TEC
1. The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 15, 26, 47(2), 49, 80, 93 and 95 and without prejudice to the other provisions of this Treaty.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.
3. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
Our aim is to find out what the amended treaty is supposed to look like. This we do by merging the express and horizontal (points 2(a), 2(b) and 2(d)) amendments with the current text as well as checking the future numbering of the Article:
Part Three Union policies and internal actions
Title I The internal market
Article 22a TFEU (ToL), renumbered Article 26 TFEU
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
For the sake of easy comparison we take note of the preceding stages of treaty reform. The European Convention, in Part III The policies and functioning of the Union, placed Title III Internal policies and action, Chapter 1 Internal market, Section 1 Establishment of the Internal Market, with Article III-14 (OJ 18.7.2003 C 169/30):
TITLE III
INTERNAL POLICIES AND ACTION
Chapter I
Internal market
Section 1
Establishment of the Internal Market
Article III-14 Draft Constitution
1. The Union shall adopt measures with the aim of establishing the internal market, in accordance with this Article, Article III-15, Article III-26(1) and Articles III-29, III-39, III-62, III-65 and III-143 and without prejudice to the other provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Constitution.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
The IGC 2004 shared this systematic approach, but merged the draft Constitution Articles III-14 and III-15 into one (OJ 16.12.2004 C 310/58):
TITLE III
INTERNAL POLICIES AND ACTION
CHAPTER I
INTERNAL MARKET
SECTION 1
ESTABLISHMENT AND FUNCTIONING OF THE INTERNAL MARKET
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The common market turned from a noble aim to an achievable goal when measures based on qualified majority voting became possible after the (initially twelve year) transitory period.
The original ‘common market’ and the later ‘internal market’ are both in use in the TEC (depending on when a provision was born), but according to horizontal amendment 2(g) of the Lisbon Treaty the words ‘common market’ shall be replaced by ‘internal market’ (throughout the Treaties).
The draft Constitution still mentioned the ‘aim of establishing the internal market’, but it relinquished the TEC mention of the target date ’31 December 1992’, linked to the Single European Act (1986).
The Constitution took the draft text one step further by ‘establishing or ensuring the functioning of the internal market’ in paragraph 1. In essence, the Lisbon Treaty adopts this text.
***
The ‘four freedoms’ in paragraph 2 form the core of the internal market, and it is religiously upheld in every version from the current TEC (actually from the Treaty of Rome) to the Lisbon Treaty: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty (now ‘the Treaties’).
If there is one thing every citizen of the European Union should know about EU law, in addition to the main institutional arrangements, it is the ‘four freedoms’:
The free movement of
Goods
Persons
Services
Capital
The four freedoms were present at the birth of the original EEC Treaty (Rome Treaty), then as the ‘common market’, and given added boost by the Single European Act. The target date of 31 December 1992 was important, but a seamless internal market is a perpetual quest.
The internal market may not work perfectly, and the tens of thousands of pages of secondary legislation may seem like a nightmare, but think of the alternatives.
Fifty years of efforts have brought about unprecedented harmonisation and recognition of standards within the European Community (Union).
The enlargement of the European Economic Community (EEC) of six into a European Community (Union) of 27 member states with the added three members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway, has led to the largest and most advanced free trade area of the world.
The ‘tons of EC rules’ (directives) achieve some sort of proportions if you think that you or your firm would have to grapple with 30 different rulebooks.
The attraction of the internal market does not stop at the present EU borders. A few states are officially on course for membership, adapting to the common rules. Then there is a number of prospective applicants pursuing voluntary harmonisation.
Some sort of influence is spread through various cooperation agreements: European Neighbourhood Policy, Mediterranean policy (Barcelona process), and African, Caribbean and Pacific states (APC).
European rules and standards are important enough to merit serious attention from exporters around the world. With existing internal concepts and a common trade policy, the European Union fills the basic requirements to ‘export’ its values in more formal settings, like bilateral and multilateral trade agreements.
Despite its imperfections, the internal market is a global success story, built on the acceptance of supranational rules as means to enhance common prosperity.
***
Since the foundation the specific legal bases for ‘measures’ is given in paragraph 1, someone may wonder what the ‘guidelines and conditions necessary to ensure balanced progress in all the sectors concerned’ in the third paragraph are all about.
Paragraph 3 seems to exist as an option for long term strategies or programmes, which would serve to improve the internal market and the balance between different industrial and service sectors. This would offer the Commission a framework for future preparatory work (but may be satisfactorily covered by existing policy and work programmes).
***
Even if the main thrust is one, essential, part of the internal market – competition – there is reason to take note of the Protocol on the internal market and competition, annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/154):
PROTOCOL
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 2 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
to this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 308 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
An introductory tour of the internal market can start from the EU Single Market web pages. Yes, the Commission seems to prefer the concept ‘single market’. Go to:
http://ec.europa.eu/internal_market/index_en.htm
This is a good starting point for ‘everything’, from the general policy framework to topical headlines.
Ralf Grahn
Tuesday, 11 March 2008
EU TFEU: Reporting and improving citizens’ rights
We conclude our survey of existing and proposed rights for EU citizens by looking at the reporting requirements for the Commission. Under the Lisbon Treaty strengthening our citizenship rights still has to pass the proverbial eye of the needle.
***
In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):
38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.
***
Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):
Article 22 TEC
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.
***
We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:
Article 22 TFEU (ToL), after renumbering Article 25 TFEU
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.
***
Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):
Article III-13 Draft Constitution
The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)
Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.
***
The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:
Article III-129 Constitution
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.
On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.
All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.
***
Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.
Ralf Grahn
***
In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):
38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.
***
Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):
Article 22 TEC
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.
***
We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:
Article 22 TFEU (ToL), after renumbering Article 25 TFEU
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.
***
Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):
Article III-13 Draft Constitution
The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)
Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.
***
The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:
Article III-129 Constitution
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.
On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.
All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.
***
Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.
Ralf Grahn
Monday, 10 March 2008
EU TFEU: Citizens’ initiative and petitions
The citizens’ initiative is one of the novelties of the Treaty of Lisbon, opening up a channel for participation. Today, we look at the legal base, which allows more exact conditions to be set (secondary legislation).
The directly elected European Parliament continues to receive petitions from citizens in matters which affect them directly.
Complaints concerning maladministration can be addressed to the Ombudsman.
In these and in other matters we have the right to address the institutions of the European Union in the treaty language of our choice, and to receive an answer in the same language.
***
In Part Two Non-discrimination and citizenship, the Treaty of Lisbon (ToL) adds a new first paragraph to Article 21 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
37) In Article 21, the following new first paragraph shall be inserted:
‘The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B of the Treaty on European
Union, including the minimum number of Member States from which such citizens must
come.’.
***
The current Article 21 TEC has the following contents (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/50-51):
Article 21 TEC
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194.
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195.
Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.
***
The Lisbon Treaty version of Article 21 looks easy to consolidate, but there are three numbers for each amended Article and every Article it refers to, if we want to know ‘everything’. Through the horizontal amendment 2(f) ‘institutions and bodies’ widens to ‘institutions, bodies, offices or agencies’ in the now fourth paragraph, and horizontal amendment 8 regards the Article references in this paragraph:
Article 21 TFEU (ToL), after renumbering Article 24 TFEU
The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B [renumbered Article 11 TEU] of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194 [TEC and TFEU (ToL), renumbered Article 227 TFEU].
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195 [TEC and TFEU (ToL), renumbered Article 228 TFEU].
Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 9 of the Treaty of European Union [repealed Article 7 TEC, replaced, in substance, by Article 9 TEU, renumbered Article 13 TEU] in one of the languages mentioned in Article 53(1) of the Treaty on European Union [repealed Article 314 TEC, replaced in substance by Article 53(1) TEU, renumbered Article 55(1) TEU] and have an answer in the same language.
***
The substance of an EU citizen’s right to petition the European Parliament, to apply to the Ombudsman and to correspond with the EU institutions in one of the treaty languages is preserved.
You can look for relevant treaty provisions and you can check the Charter of Fundamental Rights of the European Union where these rules are usually mirrored (OJ 14.12.2007 C 303/10):
Right to good administration (Article 41)
Right of access to documents (Article 42)
European Ombudsman (Article 43)
Right to petition (Article 44)
***
Since the citizens’ initiative is the novelty, we are going to follow it more closely.
The new paragraph 1 introduces the legal base for regulations on the modalities for a citizens’ initiative. The ordinary legislative procedure is used.
***
We look at the previous stages concerning the citizens’ initiative.
The European Convention proposed the following new Article I-46(4) of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-46(4) Draft Constitution
4. No less than one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens' initiative.
***
This innovation was agreed on and modified by the IGC 2004, and it became part of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/35):
Article I-47(4) Constitution
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.
***
The IGC 2004 seems to have made it still clearer that only ‘Community’ legislation qualifies, thereby leaving politically interesting questions pertaining to treaty reform and intergovernmental areas of cooperation outside the scope of admissible citizens’ initiatives.
The minimum number of initiators’ member states was specifically mentioned as one of the conditions needing provisions.
***
The IGC 2007 took over most of the substance of the Constitution text in Article 8b(4) TEU (ToL), renumbered Article 11(4) TEU, but left it to Article 21 TFEU (ToL), renumbered Article 24 TFEU, to provide the legal base for procedures and conditions.
***
Now for some subjective views:
The citizens’ initiative has been hailed as an achievement in the context of participatory democracy at European Union level. On the other hand, it has been criticized because it only invites the European Commission to submit any proposal as a result.
My preliminary thoughts on the citizens’ initiative is that the Lisbon Treaty introduces a nice sounding ‘democratic’ reform, but that the key question is that the treaty has been drafted to exclude all but the old ‘Community’ areas (first pillar; TFEU).
We can, of course, try to envision areas where sizable lobby groups like trade unions or farmers, perhaps even environmentalists or campaigners against nuclear power might muster the necessary numbers and pan-EU appeal to demand legislation within the Commission’s powers of proposal. It is possible that some questions may give rise to enough passions for ‘ad hoc’ reform coalitions to be formed, if the conditions to be set are lenient.
But the big political questions about the future of the European project seem to have been left by the member states to the member states, not the people.
Treaty reform or dissolution of the EU, as well as foreign, security and defence policy are outside the scope of admissible citizens’ initiatives.
It is therefore possible that this participatory innovation will lead to frustration, when potential campaigners, including the campaigners for the citizens’ initiative itself, are confronted with the restrictions.
Two examples:
If I understand correctly, even politically interesting ‘details’ like the ‘One seat campaign’ would have proven to be inadmissible under the rules to be crafted, since the seats of the institutions along with a myriad of questions have been agreed intergovernmentally, and changing the official seat of the European Parliament would require a unanimous decision at treaty level to change the protocol.
The objective of the ‘Who do I call campaign’ could succeed if the European Council had a unilateral change of heart to enhance democratic legitimacy within the European Union, but a mandatory provision to that effect would require a treaty amendment, again outside the powers of the Commission.
***
A Room of One’s Own is still a distant dream. The citizen of the EU has been given a playpen (an ‘enclosure in which a baby or a young child may play safely’).
Ralf Grahn
The directly elected European Parliament continues to receive petitions from citizens in matters which affect them directly.
Complaints concerning maladministration can be addressed to the Ombudsman.
In these and in other matters we have the right to address the institutions of the European Union in the treaty language of our choice, and to receive an answer in the same language.
***
In Part Two Non-discrimination and citizenship, the Treaty of Lisbon (ToL) adds a new first paragraph to Article 21 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
37) In Article 21, the following new first paragraph shall be inserted:
‘The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B of the Treaty on European
Union, including the minimum number of Member States from which such citizens must
come.’.
***
The current Article 21 TEC has the following contents (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/50-51):
Article 21 TEC
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194.
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195.
Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.
***
The Lisbon Treaty version of Article 21 looks easy to consolidate, but there are three numbers for each amended Article and every Article it refers to, if we want to know ‘everything’. Through the horizontal amendment 2(f) ‘institutions and bodies’ widens to ‘institutions, bodies, offices or agencies’ in the now fourth paragraph, and horizontal amendment 8 regards the Article references in this paragraph:
Article 21 TFEU (ToL), after renumbering Article 24 TFEU
The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B [renumbered Article 11 TEU] of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194 [TEC and TFEU (ToL), renumbered Article 227 TFEU].
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195 [TEC and TFEU (ToL), renumbered Article 228 TFEU].
Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 9 of the Treaty of European Union [repealed Article 7 TEC, replaced, in substance, by Article 9 TEU, renumbered Article 13 TEU] in one of the languages mentioned in Article 53(1) of the Treaty on European Union [repealed Article 314 TEC, replaced in substance by Article 53(1) TEU, renumbered Article 55(1) TEU] and have an answer in the same language.
***
The substance of an EU citizen’s right to petition the European Parliament, to apply to the Ombudsman and to correspond with the EU institutions in one of the treaty languages is preserved.
You can look for relevant treaty provisions and you can check the Charter of Fundamental Rights of the European Union where these rules are usually mirrored (OJ 14.12.2007 C 303/10):
Right to good administration (Article 41)
Right of access to documents (Article 42)
European Ombudsman (Article 43)
Right to petition (Article 44)
***
Since the citizens’ initiative is the novelty, we are going to follow it more closely.
The new paragraph 1 introduces the legal base for regulations on the modalities for a citizens’ initiative. The ordinary legislative procedure is used.
***
We look at the previous stages concerning the citizens’ initiative.
The European Convention proposed the following new Article I-46(4) of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-46(4) Draft Constitution
4. No less than one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens' initiative.
***
This innovation was agreed on and modified by the IGC 2004, and it became part of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/35):
Article I-47(4) Constitution
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.
***
The IGC 2004 seems to have made it still clearer that only ‘Community’ legislation qualifies, thereby leaving politically interesting questions pertaining to treaty reform and intergovernmental areas of cooperation outside the scope of admissible citizens’ initiatives.
The minimum number of initiators’ member states was specifically mentioned as one of the conditions needing provisions.
***
The IGC 2007 took over most of the substance of the Constitution text in Article 8b(4) TEU (ToL), renumbered Article 11(4) TEU, but left it to Article 21 TFEU (ToL), renumbered Article 24 TFEU, to provide the legal base for procedures and conditions.
***
Now for some subjective views:
The citizens’ initiative has been hailed as an achievement in the context of participatory democracy at European Union level. On the other hand, it has been criticized because it only invites the European Commission to submit any proposal as a result.
My preliminary thoughts on the citizens’ initiative is that the Lisbon Treaty introduces a nice sounding ‘democratic’ reform, but that the key question is that the treaty has been drafted to exclude all but the old ‘Community’ areas (first pillar; TFEU).
We can, of course, try to envision areas where sizable lobby groups like trade unions or farmers, perhaps even environmentalists or campaigners against nuclear power might muster the necessary numbers and pan-EU appeal to demand legislation within the Commission’s powers of proposal. It is possible that some questions may give rise to enough passions for ‘ad hoc’ reform coalitions to be formed, if the conditions to be set are lenient.
But the big political questions about the future of the European project seem to have been left by the member states to the member states, not the people.
Treaty reform or dissolution of the EU, as well as foreign, security and defence policy are outside the scope of admissible citizens’ initiatives.
It is therefore possible that this participatory innovation will lead to frustration, when potential campaigners, including the campaigners for the citizens’ initiative itself, are confronted with the restrictions.
Two examples:
If I understand correctly, even politically interesting ‘details’ like the ‘One seat campaign’ would have proven to be inadmissible under the rules to be crafted, since the seats of the institutions along with a myriad of questions have been agreed intergovernmentally, and changing the official seat of the European Parliament would require a unanimous decision at treaty level to change the protocol.
The objective of the ‘Who do I call campaign’ could succeed if the European Council had a unilateral change of heart to enhance democratic legitimacy within the European Union, but a mandatory provision to that effect would require a treaty amendment, again outside the powers of the Commission.
***
A Room of One’s Own is still a distant dream. The citizen of the EU has been given a playpen (an ‘enclosure in which a baby or a young child may play safely’).
Ralf Grahn
Sunday, 9 March 2008
EU TFEU: Diplomatic or consular protection
Think of yourself in a faraway country, where your home country is unrepresented, if your companion dies, you are in a serious accident or fall seriously ill, or you are (wrongly) arrested or detained, or you are mugged or raped, or your money and passport are stolen and you lack the means to return home.
The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.
But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.
The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.
***
The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:
‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.
***
The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:
Article 20 TFEU (ToL), after renumbering Article 23 TFEU
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall adopt the necessary provisions and start the international negotiations required to secure this protection.
The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.
***
How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):
Article III-11 Draft Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.
A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.
***
The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):
Article III-127 Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).
Member States shall commence the international negotiations required to secure this protection.
A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.
***
Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.
The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.
The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.
***
From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:
95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations
The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.
This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.
***
The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:
96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).
***
The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:
Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 European Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection
***
Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):
Article 46 Charter
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
***
The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):
Explanation on Article 46 — Diplomatic and consular protection
The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.
***
The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:
Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final
At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.
In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:
Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final
The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.
The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.
Ralf Grahn
The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.
But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.
The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.
***
The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:
‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.
***
The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:
Article 20 TFEU (ToL), after renumbering Article 23 TFEU
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall adopt the necessary provisions and start the international negotiations required to secure this protection.
The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.
***
How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):
Article III-11 Draft Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.
A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.
***
The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):
Article III-127 Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).
Member States shall commence the international negotiations required to secure this protection.
A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.
***
Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.
The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.
The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.
***
From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:
95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations
The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.
This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.
***
The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:
96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).
***
The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:
Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 European Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection
***
Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):
Article 46 Charter
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
***
The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):
Explanation on Article 46 — Diplomatic and consular protection
The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.
***
The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:
Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final
At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.
In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:
Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final
The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.
The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.
Ralf Grahn
Saturday, 8 March 2008
EU TFEU: Citizen’s right to vote
The electoral rights of EU citizens do not evolve as a result of the Treaty of Lisbon, which retains the right to vote in local elections and in elections to the European Parliament in one’s member state of residence, as well as the right to stand as a candidate in these elections.
Regional and national elections are still uncovered by common provisions for EU expats.
***
We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.
We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.
In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):
3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph
***
After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):
Article 19 TEC
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
The Lisbon Treaty version of Article 19 should look like this:
Article 19 TFEU (ToL), after renumbering Article 22 TFEU
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):
Article III-10 Draft Constitution
A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.
***
The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):
Article III-126 Constitution
A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.
***
We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.
Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.
***
Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:
Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final
***
National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.
For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.
***
The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.
The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)
***
For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).
***
With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:
Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)
Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
***
For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.
***
The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.
If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.
The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):
6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.
***
EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals
Ralf Grahn
Regional and national elections are still uncovered by common provisions for EU expats.
***
We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.
We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.
In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):
3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph
***
After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):
Article 19 TEC
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
The Lisbon Treaty version of Article 19 should look like this:
Article 19 TFEU (ToL), after renumbering Article 22 TFEU
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):
Article III-10 Draft Constitution
A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.
***
The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):
Article III-126 Constitution
A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.
***
We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.
Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.
***
Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:
Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final
***
National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.
For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.
***
The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.
The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)
***
For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).
***
With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:
Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)
Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
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For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.
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The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.
If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.
The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):
6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
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Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.
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EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals
Ralf Grahn
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