[Previous posts on The Lisbon Treaty can be located here.]

Quite the snappy title, eh? Anyway, you’ll be happy to know that the section of the existing EU treaties entitled “Union policies and internal actions” is so long, that it won’t all be dealt with in this post. And this post will a wee bit lengthy as it is. Oh, the joy.. So, hold on to your hats!

In this section, we’ll be dealing with:

• the internal market;
• free movement of goods;
• agriculture and fisheries;
• free movement of persons, services and capital; and
• the area of freedom, security and justice.

Why, it all sounds just so riveting..!

(Don’t forget that the Lisbon Treaty amends the existing EU treaties, which are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). So, again, I’ll be discussing the amendments made by Lisbon in that context. Currently, the focus is on the amendments to the TFEU.)

Away we go!

the internal market

An existing article on the internal market is inserted by the Lisbon Treaty at this stage (newly numbered Article 26), and Lisbon replaces the first paragraph of that article to read:

1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the provisions of the Treaties.

The subsequent existing article is inserted next (now called Article 27), and it deals with taking into account differences in economic developments among the EU’s member states when seeking to achieve the objectives of Article 26 (the internal market). Lisbon Amends the text of Article 27 is amended by Lisbon by replacing the words “during the period of establishment” with “for the establishment”. The effect of the amendment is to take account of the fact that the internal market now exists. ‘Tis only semantics.

free movement of goods

The next article is semantics, too, with “shall be based upon” being replaced by “shall comprise”. The article deals with a customs union being a component of the EU, in order to facilitate the free movement of goods.

A sub-heading in this section is inserted by Lisbon, entitled “Customs Cooperation“. Lisbon also inserts into that sub-heading an existing article on strengthening customs cooperation between EU member states. (There’s just the one article under this sub-heading).

agriculture and fisheries

We skip along past several articles which remain unchanged by Lisbon until we get to this section. The first change made by Lisbon is that fisheries is now included in this section, which originally was only dealing with agriculture. An amendment is made to the first article in this section to reflect this, stipulating that the terms “agricultural policy” or “agriculture” are to be taken to include fisheries.

Another semantic change is made, to reflect that the internal market now exists (when dealing with agricultural products).

Skipping past several more unchanged articles, we reach the newly numbered Article 42, which again is actually an already existing article. This paragraph states that certain rules on competition only apply to agricultural products a certain extent. A couple of small but significant amendments are made by Lisbon. One is that the first paragraph states that the European Parliament and the Council determine to what extent the competition rules apply, as opposed to previously when only the Council decided. The second amendment states that where in certain circumstances aid may be granted, the Commission will make a proposal and the Council may then authorise granting of that aid.

The next article is amended by Lisbon, first of all to show that the EU as it now is, does in fact exist as it now is. Secondly, it is amended by adding two new paragraphs to the article. The first new paragraph allows for “the common organisation of agricultural markets” and any other measures needed to pursue the objectives of the common agricultural and fisheries policies. This can only be done by the European Parliament and the Council, and this is only after consulting with the Economic and Social Committee. The second new paragraph states:

3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantative limitations and on the fixing and allocation of fishing opportunities.

free movement of persons, services and capital

The first part of this section is given the sub-heading, “Workers“, and the final article under this sub-heading is amended by Lisbon. The first amendment changes the wording “migrant workers and their dependents” to “employed and self-employed migrant workers and their dependents”, in respect of passing EU laws on social security and the freedom of movement of workers.

A new paragraph is then inserted which allows a member state who has concerns about any draft law in relation to social security in their territory to refer the matter to the European Council.

The next sub-heading in this section is “Freedom of Establishment“, which basically means EU citizens have the freedom to set up a business anywhere in the EU. A couple of small amendments are made by Lisbon to a couple of articles in this sub-heading. The first amendments includes the European Parliament in duties to be carried out in relation to freedom of establishment (where previously it was only the Council and the Commission).

The next amendment by Lisbon allows the European Parliament and the Council to jointly adopt laws to state that the rules contained in this sub-heading do not apply to certain activities (whereas previously it was the Council alone which could do this).

Skipping a couple of articles ahead, to an article concerned with passing EU laws to allow for the mutual recognition of educational qualifications in order to make it easier “to take up and pursue activities as self-employed persons”. Lisbon adds that the EU laws can also coordinate the rules within EU member states concerning the taking up and pursuit of activities as self-employed persons.

A couple of articles on again, and Lisbon inserts another already existing article (now called Article 55) which requires non-discrimination by member states of nationals from other member states in relation to “participation in the capital of companies or firms”.

Next sub-heading! This time it’s “Services“. The updating semantic count is up, with Lisbon replacing the phrase “State of the Community” with “Member State” in an existing article. After that, the same article is amended by Lisbon to allow the European Parliament and the Council to jointly adopt laws to allow individuals who are nationals of non-EU countries “who provide services and who are established within the Union” to benefit from the rules of this sub-heading (whereas previously it was the Council alone which could do this).

Next is another semantic update to replace the out-dated “the State” with “the Member State”.

The next article to be amended deals with the liberalisation of services (now numbered Article 59). The article as amended by Lisbon now provides that EU laws aimed at the liberalisation of “a specific service” can now be jointly passed by the European Parliament and the Council, and only after consulting the Economic and Social Committee. Previously, such laws were passed by the Council upon a proposal from the Commission, and after consultation with the Economic Social Committee and the European Parliament.

The next sub-heading is “Capital and Payments“. Wake up, down the back.

First on the list here to be amended by Lisbon is the third article under this sub-heading. This existing article concerns movement of capital into our out of the EU. The amendment by Lisbon affects “the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.” What the amendment does is it allows the European Parliament and Council to jointly adopt laws on that yawn-fest in quotation marks (whereas previously the Commission proposed and the Council adopted those measures).

The next article has a new extra paragraph added by Lisbon. As the Treaties already exist, it may be possible in limited circumstances for EU law to be regressed in relation to liberalisation of movement of capital to or from third countries. The new paragraph effectively says that if such measures aren’t in place and a member state has restrictive tax laws in relation to a non-EU country or countries, the member state’s tax laws are deemed compatible with the EU Treaties insofar as they are justified by an EU objective and they don’t interfere with the internal market. In such a situation, the Council acts unanimously on an application by such a member state.

the area of freedom, security and justice (AFSJ)

This is where the fun starts. In this section, the Lisbon Treaty inserts a whole new series of sub-headings and articles. The joy that this brings is that I get to summarise it all, and you (if you are that way inclined) get to read all of what I type. (I think I need more wine..)

[The irony is that I lost my original version of this section by accidentally using the keyboard shortcut to refresh the page, rather than open a new tab. So, in fact, nobody gets to read what I had typed at all. Thankfully, quaffable wine, chocolate and my supportive girlfriend helped me dust myself down and get on back to this thankless task!]

Once more, into the breech..

The Lisbon Treaty inserts a new sub-heading, “General Provisions”.

The first article inserted by Lisbon states:

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems of the Member States.

Next, the article requires the EU to ensure the absence of internal border controls, and commits the EU “to frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals”. That is, people from outside of the EU. Stateless persons are to be treated as third-country nationals.

After this, the EU must ensure a high level of security by combating crime, racism and xenophobia, by police and judicial co-operation, as well as through mutual recognition of criminal judgements “and, if necessary, through an approximation of criminal laws”.

The EU is committed to facilitating access to justice, in particular through mutual recognition of judgements in civil (non-criminal) matters.

In the next article, the European Council (i.e. heads of state and government) “shall define the strategic guidelines” for laws and operational planning within the AFSJ.

The article after that states that the national parliaments of member states shall ensure that proposals and draft laws in relation to “Judicial Cooperation in Criminal Matters” and “Police Cooperation” (see below) comply with “the principle of subsidiarity”.

[In other words, they must comply with the idea that regional, national and local considerations are taken into account and that the EU shall act only insofar as the objective of the proposal cannot be sufficiently achieved by the member state(s). (See Article 5 of the TEU and Protocol No.2 on the Application of the Principles of Subsidiarity and Proportionality).]

The next article states that the Council may adopt measures, on the proposal of the European Commission, in respect of evaluating the implementation of the policies in this section by a member state’s authorities.

The article after this establishes a committee within the Council to ensure that co-operation on EU security is promoted and strengthened.

Following this, newly numbered Article 72 makes clear that member states retain the responsibility to maintain law and order.

Article 73 allows for member states to work together as may be appropriate for safeguarding national security.

Next: The Council shall adopt measures to ensure administrative co-operation between member states, and between member states and the Commission.

Nearly there: Where necessary to achieve the objective of the area of freedom, security and justice, the European Parliament and the Council may jointly pass laws aimed at the financial aspects of terrorism.

Last article in this section (hooray!): The administrative co-operation measures (mentioned above) and acts related to “Judicial Cooperation in Criminal Matters” and “Police Cooperation” shall be adopted “on a proposal from the Commission” or “on the initiative of a quarter of the Member States”.

On to the next sub-heading: “Policies on Border Checks, Asylum and Immigration”.

The first article under this sub-heading, Article 77, requires the EU to develop a policy to ensure the absence of any border controls within the EU; to carry out checks on persons and monitor crossings of external EU borders; and to ensure the gradual introduction of an integrated management system for external borders.

To this end, the European Parliament and Council shall adopt measures concerning: the common policy on visas and other short-stay permits; the conditions under which non-EU nationals shall have the freedom to travel within the EU for a short period; and the items listed in the paragraph above.

If necessary and appropriate, the Council may adopt rules concerning passports, identity cards, residence permits or any other such document. This shall be done unanimously after consulting the European Parliament.

The competence [oh, how I’ve missed that word..] of member states to demarcate their borders is not affected by this article.

Next article: This deals with developing a common EU policy on asylum, subsidiary protection (SP) and temporary protection, in accordance with international law.

To this end, the European Parliament and the Council may jointly adopt rules for a common asylum system, comprising: a uniform EU status of asylum; a uniform EU status of SP, where needed; a common system of temporary protection for displaced persons in the event of a massive inflow; common procedures for the granting and withdrawing of uniform asylum or SP status; procedures for determining which member state is responsible for considering applications for asylum/SP; accommodation standards for asylum or SP applicants; partnership and co-operation with non-EU countries in order to manage inflows of people applying for asylum or SP.

If one or more member states face “an emergency situation characterised by a sudden inflow of nationals of third countries”, the Council, on a proposal from the Commission, may adopt provisional measures for those member states, after consulting with the European Parliament.

Re-numbered Article 79 requires the EU to develop a common immigration policy aimed at management of migration flows, fair treatment of legally-resident non-EU nationals, and tackling illegal immigration and human trafficking.

To this end, the European Parliament and Council shall jointly adopt rules in relation to: conditions of entry and residence and standardising how member states issue long-term visas and residence permits, including those relating to family re-unification; the definition of the rights of non-EU nationals legally resident in a member state, including freedom of movement; illegal immigration, removal and repatriation; combating trafficking in persons, in particular women and children.

The EU may conclude agreements with non-EU countries for the return of the latter’s nationals.

The European Parliament and Council may jointly establish measures to support integration of non-EU nationals in member states, excluding any harmonisation of laws.

This article, Article 79, does not affect the right of member states to determine the volumes of admission of non-EU nationals travelling from non-EU countries to their territory to seek work, whether employed or self-employed.

Article 80! (I feel like I’m at a game of darts.) This states:

The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.

Next sub-heading (T-minus 3..): “Judicial Cooperation in Civil Matters”.

The first article states that judicial co-operation in civil matters across borders will be based on the principle of mutual recognition of decisions that are judicial and extra-judicial. “Such cooperation my include the adoption of measures for the approximation of the laws and regulations of the Member States.”

To this end, the European Parliament and the Council, shall adopt measures, particularly in relation to the “proper functioning of the internal market”, to ensure: mutual recognition and enforcement of decisions; cross-border service of documents; “the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction”; co-operation in the taking of evidence; effective access to justice; the elimination of obstacles to the proper functioning of civil proceedings, “if necessary by promoting the compatibility of the rules on civil procedure applicable in Member States”; alternative methods of dispute settlement; support for the training of the judiciary and judicial staff.

The next paragraph in this article states:

Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

It then states that the Council – on a proposal from the Commission, acting unanimously, and after consulting the European Parliament – may adopt a decision identifying those aspects of family law with cross-border implications in respect of which EU laws may be passed jointly by the European Parliament and the Council.

Such a decision shall be notified to the national parliaments of member states. If a national parliament makes known its opposition within six months, the decision will not be adopted.

Next sub-heading (..T-minus 2..): “Judicial Cooperation in Civil Matters”.

The first article (Article 82) provides that such co-operation is based on the principle of mutual recognition of judgements and judicial decisions “and shall include the approximation of the laws and regulations of the Member State in the areas mentioned in the next paragraph and in the next article. The European Parliament and Council shall jointly adopt measures to: rules for recognition of all forms of judicial decisions; remove any conflicts of jurisdiction between member states; support judicial training; facilitate co-operation between the relevant authorities of member states in relation to criminal proceedings and enforcement.

The next paragraph in this article states that in order to facilitate mutual recognition of judicial decisions, and police and judicial co-operation in criminal matters, the European Parliament and the Council may jointly establish minimum rules through directives. Such rules “shall take into account the difference between the legal traditions and systems of the Member States”.

The rules relate to: mutual admissibility of evidence; individuals’ rights in criminal procedures; victims’ rights; “any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament”.

The adoption of these minimum rules shall not prevent member states from providing a higher level of protection for individuals.

Next paragraph: Where a member of the Council (a minister of a member state) considers that a draft directive as mentioned in the previous paragraph would affect “fundamental aspects of its criminal justice system”, it may request that the draft be referred to the European Council (heads of state or government).

The usual method of EU law-making is suspended unless and until the European Council discusses and reaches a consensus within four months, at which point the suspension ends.

If, however, there is disagreement and at least nine member states wish to proceed with the draft directive, the European Parliament, the Council and the Commission shall be notified. In such a situation, the authorisation to proceed shall be deemed granted in accordance with certain provisions of the TEU and TFEU (i.e. Article 20(2) TEU and Article 329(1) TFEU).

The next article, 83, allows for the European Parliament and Council to jointly establish minimum rules, by means of directives, for the definition of criminal offences and penalties in relation to the following areas of serious cross-border crime: terrorism, human trafficking and sexual exploitation, drug trafficking, arms trafficking, money laundering, corruption, counterfeiting, computer crime and organised crime.

The Council may adopt a decision identifying other areas of crime described in this Article, by acting unanimously and after obtaining the consent of the European Parliament.

In certain circumstances, directives may be adopted to establish minimum rules in relation to definition of criminal offences and penalties in certain areas.

Where a member of the Council (a minister of a member state) considers that a draft directive as mentioned in the previous paragraph would affect “fundamental aspects of its criminal justice system”, the same rules apply as in the previous article.

Article 84: The European Parliament and Council may jointly establish measures to support member states in the field of crime prevention, excluding harmonisation of member states’ laws.

Next article: Eurojust’s mission is defined in relation to prosecuting serious crime.

The European Parliament and the Council by means of regulations shall jointly determine Eurojust’s structure and functioning, which may include: initiating criminal investigations, and proposing initiation of prosecutions, particularly those relating to offences against the financial interests of the EU; co-ordinating such investigations and prosecutions; strengthening judicial co-operation.

Such regulations shall also set out the involvement in European and national parliaments in the evaluation of Eurojust’s activities.

Article 86 relates to combating crimes affecting the financial interest of the EU. To this end, the Council may establish a European Prosecutor’s Office (EPO) from Eurojust. This shall be done by unanimous agreement and after obtaining the European Parliament’s consent.

The role of the EPO is set out next, and the European Council may adopt a decision to amend the first paragraph of this article in order to extent the EPO’s powers. The European Council shall act unanimously after consulting the Commission.

Next sub-heading (..T-minus 1..): “Police Cooperation”.

Such co-operation shall be established by the EU involving all the relevant law enforcement agencies of the member states.

To achieve this, the European Parliament and Council may jointly adopt measures to establish: information storage, analysis and exchange; support for staff training and exchanges; common investigative techniques in relation to serious organised crime.

The Council may establish “measures concerning operational cooperation” between these authorities, acting unanimously and after consulting the European Parliament.

The mission of Europol is set out in the next article. To determine Europol’s structure and functioning, the European Parliament and the Council may jointly adopt regulations, including: storage and exchange of information; organisation of investigations.

The regulations will also allow for scrutiny of Europol by the European and national parliaments.

Any operational action by Europol “must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities”.

Final article! Article 89 states that the Council shall lay down the conditions where national authorities may operate in another member state in liaison and agreement with that state’s authorities. The Council shall act unanimously and after consulting the European Parliament.

(..Lift off!..)

And I’m done. Time to crawl into a darkened corner..

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