EU competence to conclude Free Trade Agreements under the Lisbon Treaty

On Dec. 1, 2009, the European Union Lisbon Treaty will enter into force. (provisional consolidated text) On this page we present a draft analysis of the EU competence to conclude ACTA and other trade agreements.

Generally speaking, the European Parliament's role becomes more important, the member states loose some of their veto power.

European Parliament

Consent of the European Parliament has to be obtained in most cases. Consent for ACTA is needed, the European Parliament has a veto on ACTA.

Fully informed

"The European Parliament shall be immediately and fully informed at all stages of the procedure." (Lisbon 218.10)

This goes further than the earlier Nice Treaty ("The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement." TEC 300.2)

With ACTA, only the EP Trade Committee was informed, it received secondary texts. That is not immediately and fully informing the whole Parliament.

So starting with Dec. 1 2009, the Parliament has to receive ALL documents. The real ones.

Compatible with internal rules

The EP adopted some texts which are relevant regarding ACTA, like:

European Parliament resolution 18 December 2008

Regulation (EC) No .../2009 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) 11 March 2009

Telecoms package

Lisbon 207: "The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules."

If ACTA does not respect adopted texts and or EU legislation, the EP may find that a reason to reject ACTA.

Proportional

ACTA has to be compatible with internal Union policies and rules (Art. 207.3 TFEU). But not only that. EU actions also have to be proportional (Art. 5 TEU).

Council

The Council shall act by a qualified majority. Qualified majority voting in the Council is the rule. A blocking minority can stop ACTA.

Like with the EU - South Korea Free Trade Agreement, the Commission may first conclude the text, obtain informal support, initialize it (sign with initials) and then publish it and make translations. After that the European Commission will formally present it to EU Member States. In such a case, the governments already agree. If national parliaments like to change that, it is an uphill battle.

Pressure may lead to earlier publication.

Veto's

Services

In some cases unanimity is needed, like with trade in services (this is a very limited exception to the qualified voting rule, much more limited than under the earlier Nice Treaty). This seems not to apply to ACTA.

Criminal measures

The member states may still have a veto on criminal measures. EU competence in criminal measures is new (except the ECJ coup d'etat C-176/03). This competence is limited as well. The limitations may vaporize in the coming years. But how strong are they now?

Will the criminal measures in ACTA fall within EU competence? The Commission may say yes, EP may do that too, the Council may say no. The Institutions may battle over competence.

If the EU is not competent to make the criminal measures itself, it can not do it by way of ACTA either. Then member states have a veto.

Some articles with comment

Art 207 replaces art 133

207.4.

"For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.

For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.

The Council shall also act unanimously for the negotiation and conclusion of agreements: (a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity; (b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them."

The Member States' vetoes on trade in services are much weaker than under the Nice treaty. They do not seem to apply.

207.6 "The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation."

If the EU is not competent to make the criminal measures itself, it can not do it by way of ACTA either. Then member states have a veto.

218 replaces art 300

218.6

"Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases: (i) association agreements; (ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) agreements establishing a specific institutional framework by organising cooperation procedures; (iv) agreements with important budgetary implications for the Union; (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act."

218.6 (a) (iii) may apply. 218.6 (a) (v) applies (IP is "normal legislation").

The European Parliament has a veto.

218.10 "The European Parliament shall be immediately and fully informed at all stages of the procedure."

That seems better, although, secret information can not be used.

218.11

"A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised."

Criminal measures

Article 83

Competence in criminal matters depends on interpretation of "areas of particularly serious crime with a cross-border dimension", "counterfeiting", "computer crime", "essential to ensure the effective implementation of a Union policy".

The ACTA criminal measures may resemble the ones in the IPRED 2 proposal (now in coma). According Dutch parliament, the IPRED 2 criminal measures were not essential. The Commission started a study on it, years ago.

The outcome of this study is unknown.

IPRED 2 was proposed after the ECJ granted the EU competence in criminal matters. The member states were not amused by the coup d'etat, and put IPRED 2 in coma.

acta/lisbon (last edited 2010-06-08 14:17:08 by awessels)

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