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The Amsterdam treaty: a comprehensive guide

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The Amsterdam treaty: a comprehensive guide

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Institutional affairs > Building europe through the treaties > The Amsterdam treaty: a comprehensive guide

The Amsterdam treaty: a comprehensive guide

The factsheets here summarise the main changes brought about by the Treaty of Amsterdam. We have tried to present them as straightforwardly as possible.

Please note, however, that the factsheets are intended solely for your information. The European Commission accepts no legal responsibility. The factsheets make no claim to be exhaustive and cannot be regarded as an official interpretation of the Treaty text.

Freedom, security and justice

  • Fundamental rights and non-discrimination.
  • The gradual establishment of an area of freedom, security and justice

The Union and the citizen

  • Citizenship of the European Union
  • Employment
  • Social policy
  • Environment
  • Public health
  • Consumer protection
  • Transparency, simplification of the Treaties and quality of Community legislation

Effective and coherent external policy

  • Common Foreign and Security Policy
  • Common commercial policy

Institutional questions

  • The European Parliament
  • The Council of the European Union
  • European Commission
  • The Court of Justice
  • The Court of Auditors, the Economic and Social Committee and the Committee of the Regions
  • National parliaments
  • Subsidiarity
  • Closer cooperation
  • Decision-making procedures

Building europe through the treaties

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Building europe through the treaties

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Institutional affairs > Building europe through the treaties

Building europe through the treaties

The signing of the Community Treaties (ECSC in 1951, EEC and Euratom in 1957) marked the starting point for over 50 years of European treaties. The ‘founding’ Treaties establishing the European Communities and the European Union, together with the major amending Treaties, constitute the primary legislation; in other words, they are the supreme law of the Union and of the European Communities.
The Treaties, which are agreed by the Heads of State and Government of the Member States, contain the formal and substantive rules on the basis of which the institutions implement the various policies of the Communities and of the Union. They lay down the formal rules, setting out the division of powers between the Union and the Member States, and conferring powers on the institutions. They also determine the substantive rules defining the scope of policies and the activities of the institutions within each policy area.

  • Introduction
  • The Lisbon Treaty: a comprehensive guide

SUBSEQUENT AMENDMENTS: FROM THE SINGLE ACT TO THE TREATY OF NICE

  • The Single European Act
  • Treaty of Maastricht on European Union
  • The Amsterdam treaty: a comprehensive guide

FROM THE EUROPEAN COMMUNITIES TO THE EUROPEAN UNION

  • Treaty establishing the European Coal and Steel Community, ECSC Treaty
  • Treaty establishing the European Economic Community, EEC Treaty – original text (non-consolidated version)
  • Treaty establishing the European Atomic Energy Community (Euratom)

Treaty of Nice: A Comprehensive Guide

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Treaty of Nice: A Comprehensive Guide

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Institutional affairs > Building europe through the treaties > Treaty of Nice: A Comprehensive Guide

Treaty of Nice: A Comprehensive Guide

The thematic factsheets contained in this guide sum up as clearly as possible the main changes brought about by the Treaty of Nice. They are for information only.

The factsheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the Treaty text.

Within each factsheet, you may obtain definitions of certain terms by clicking on the relevant links to the glossary. Where appropriate, links are also provided to the guide to the Treaty of Amsterdam and to the full text of the provisions of the various Treaties (EC, EU and Nice).

  • Introduction

Institutional questions

  • The Council of the European Union
  • The European Commission
  • The judicial system of the European Union: Court of Justice and Court of First Instance
  • The other institutions and bodies of the Union

The decision-making system

  • Enhanced cooperation
  • Qualified majority voting

Other reforms

  • Thematic provisions
  • The declarations and protocols annexed to the Treaty

The other institutions and bodies of the Union

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The other institutions and bodies of the Union

Outline of the Community (European Union) legislation about The other institutions and bodies of the Union

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Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

The other institutions and bodies of the Union

The Treaty of Lisbon undertakes a vast institutional reform which mainly concerns the European Council, the Commission, the Council, the Parliament and the Court of Justice. To a lesser extent, the Treaty of Lisbon also makes a number of changes relating to the composition and functioning of the EU’s two advisory committees. It also awards the European Central Bank the status of institution.

THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

The number of seats for Member States within the Committee is limited to 350. The distribution of these seats between Member States is no longer included in the Treaty of Lisbon, as was the case previously. As it is required to do henceforth for the distribution of seats in the Parliament, the Council unanimously adopts a decision laying down rules on the composition of the Committee. Moreover, the Treaty of Lisbon extends the term of office of members of the Committee from 4 to 5 years, bringing it into line with that of members of the Commission and the Parliament. Consequently, the Committee chairman and officers will now be elected by their peers for two and a half years rather than for two years.

As part of its advisory role, the Economic and Social Committee may henceforth issue opinions following a referral from the European Parliament.

THE COMMITTEE OF THE REGIONS

As with the European Economic and Social Committee, the number of seats within the Committee of the regions is limited to 350 and the distribution of seats by Member State must be the subject of a unanimous Council decision. The members of the Committee of the Regions are henceforth appointed for a term of five years, instead of four, while its chairman and officers are elected for two and a half years.

In addition, the Treaty of Lisbon strengthens the advisory role of the Committee of the Regions by extending its area of activity. Civil protection, climate change, energy and services of general interest are therefore added to the list of fields in which the Committee is to be consulted. On the same basis as the Commission and the Council, the European Parliament is also authorised to seek an opinion from the Committee of the Regions.

The Committee of the Regions also has new powers within the EU as a result of the possibility of bringing two types of action before the Court of Justice of the EU. On the one hand, the Committee becomes one of the guarantors of the principle of subsidiarity within the EU. It may bring an action before the Court of Justice seeking the annulment of an act deemed not to comply with the principle of subsidiarity (Article 8 of the Protocol on the application of the principles of subsidiarity and proportionality). However, this right of referral is limited to acts for which the Committee has to be consulted. On the other hand, Article 263 of the Treaty on the Functioning of the EU authorises the Committee to bring an action before the Court of Justice of the EU for the purpose of protecting its own prerogatives. It therefore has legal means which henceforth enable it to ensure that the EU institutions respect its right to be consulted.

THE EUROPEAN CENTRAL BANK

The ECB is granted the status of EU institution on the same basis as the European Council, the Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors. It thereby becomes the only institution granted legal personality.

It is run by three main bodies:

  • the Governing Council of the ECB, which comprises the members of the Executive Board and the governors of the national central banks of the Euro zone countries. It is the main decision-making body and defines the monetary policy of the Euro zone;
  • the Executive Board, the six members of which are henceforth appointed by the European Council acting by a qualified majority in order to limit the risks of blocking;
  • the General Council, which comprises the members of the Executive Board and the governors of the central banks of all Member States.

The Treaty of Lisbon also clarifies the two principal missions of the ECB:

  • the ECB and the central banks of the EU Member States form the European System of Central Banks (ESCB). The main objective of the ESCB is to maintain price stability. It also contributes to the general economic policies of the Union;
  • the ECB and the central banks of Member States which have adopted the Euro make up the Eurosystem. In contrast with the ESCB, the Eurosystem defines and conducts the monetary policy of the Union. Until now, ‘Eurosystem’ was a term used informally by the ECB. It is henceforth fully recognised by the Treaty of Lisbon.

The Treaty of Lisbon finally reaffirms the independence of the ECB. This independence is guaranteed by the relatively long term of office of the members of the Executive Board (eight years) and by the prohibition banning the ECB and the national central banks from accepting instructions from the other EU institutions, governments of Member States or any other body.

SUMMARY TABLE

Articles Subject

Treaty on the Functioning of the European Union

282 to 284

Composition and prerogatives of the European Central Bank

301 to 304

Composition and prerogatives of the European Economic and Social Committee

305 to 307

Composition and prerogatives of the Committee of the Regions

Division of competences within the European Union

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Division of competences within the European Union

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Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

Division of competences within the European Union

The Treaty of Lisbon clarifies the division of competences between the European Union (EU) and Member States. It introduces a precise classification for the first time in the founding Treaties, distinguishing between three main types of competence: exclusive competences, shared competences and supporting competences.

This attempt at clarification does not result in any notable transfer of competence. However, this reform is important and vital for the proper functioning of the EU. Several conflicts of competence have emerged in the past between the EU and Member States. Henceforth, the boundaries between the competences of each are clearly defined. In addition, this transparency facilitates the application of the fundamental principles relating to the control and exercise of these competences.

ABOLITION OF THE PILLARS OF THE EU

One of the most notable changes resulting from the Treaty of Lisbon concerns the abolition of the three-pillar structure of the EU. These pillars were:

  • the European Community;
  • the Common Foreign and Security Policy (CFSP);
  • police and judicial cooperation in criminal matters.

Within this structure, several types of competence were superimposed. Acts adopted under the framework of the first pillar were adopted in accordance with the EU’s legislative procedures. In contrast, the other two pillars were based on intergovernmental cooperation between Member States.

The Treaty of Lisbon puts an end to this complicated structure. The European Community disappears. It is replaced by the EU, which is endowed with legislative procedures enabling it to exercise the competences conferred upon it to the full extent. Moreover, the EU also acquires legal personality, which was previously reserved for the old Community. It is therefore able henceforth to conclude treaties in the fields coming within its area of competence.

THE THREE MAIN TYPES OF COMPETENCE

The Treaty on the Functioning of the EU (TFEU) distinguishes between three types of competence and draws up a non-exhaustive list of the fields concerned in each case:

  • exclusive competences (Article 3 of the TFEU): the EU alone is able to legislate and adopt binding acts in these fields. The Member States’ role is therefore limited to applying these acts, unless the Union authorises them to adopt certain acts themselves;
  • shared competences (Article 4 of the TFEU): the EU and Member States are authorised to adopt binding acts in these fields. However, Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence;
  • supporting competences (Article 6 of the TFEU): the EU can only intervene to support, coordinate or complement the action of Member States. Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for Member States.

SPECIAL COMPETENCES

The EU has special competences in certain fields:

  • the coordination of economic and employment policies (Article 5 of the TFEU): the EU is responsible for ensuring the coordination of these policies. It is required to define the broad direction and guidelines to be followed by Member States;
  • the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields connected with the CFSP. It defines and implements this policy via, among others, the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy, whose roles and status have been recognised by the Treaty of Lisbon. However, the EU may not adopt legislative acts in this field. In addition, the Court of Justice of the EU does not have competence to give judgment in this area;
  • the “flexibility clause” (Article 352 of the TFEU): this clause enables the EU to act beyond the power of action conferred upon it by the Treaties if the objective pursued so requires. However, this clause is framed by a strict procedure and by certain restrictions in terms of its application.

THE EXERCISE OF COMPETENCES

The exercise of Union competences is subject to three fundamental principles which appear in Article 5 of the Treaty on EU. The definition of EU competences greatly facilitates the proper application of these principles:

  • the principle of conferral: the Union has only the competences conferred upon it by the Treaties;
  • the principle of proportionality: the exercise of EU competences may not exceed what is necessary to achieve the objectives of the Treaties;
  • the principle of subsidiarity: for shared competences, the EU may intervene only if it is capable of acting more effectively than the Member States;

TRANSFER OF COMPETENCES

The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.

The European Council

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The European Council

Outline of the Community (European Union) legislation about The European Council

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Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

The European Council

The Treaty of Lisbon clarifies the institutional architecture of the European Union (EU). It finally accords the status of institution to the European Council. This recognition has been a gradual process. The first summits between Heads of State and Government which resulted in the European Council were held informally starting in 1961. In 1974, these meetings became regular and adopted the name of “European Council”. The Single European Act and the Treaty of Maastricht in turn specified the nature of the European Council.

The Treaty of Lisbon therefore marks an important stage in that it clarifies and fully recognises the role and functions of the European Council within the EU. It also changes the composition of the European Council, which is chaired by a permanent President from now on.

ROLE

The Treaty of Lisbon includes the European Council among the institutions of the Union. Its role is to provide political impetus. It does not exercise legislative functions. It defines the priorities for the construction of Europe and indicates the direction to be taken by European policies. The European Council thus defines a schedule and specific objectives for the Council of the EU, the Commission and the European Parliament.

The central role of the European Council in the EU is also illustrated by its power of appointment. It proposes the candidate for the post of President of the European Commission and appoints the High Representative of the Union for Foreign Affairs and Security Policy. From now on, it will also elect its President.

COMPOSITION

The European Council is composed of the Heads of State or Government of the Member States, the President of the European Council and the President of the Commission. Depending on the agenda, the members of the European Council may decide to call on the assistance of a minister and, in the case of the President of the Commission, of a Commissioner. The High Representative of the Union for Foreign Affairs and Security Policy also participates in its work.

FUNCTIONING

Before the entry into force of the Treaty of Lisbon, the Treaty on European Union provided that the European Council met at least twice a year. In practice, a European Council takes place at the end of each Presidency, in June and December; two additional Council meetings are also organised in March and June. The Treaty of Lisbon confirms this practice and specifies that, from now on, the European Council must meet twice every six months, convened by its President. In addition, when the situation so requires, the President may convene an extraordinary meeting of the European Council.

THE PRESIDENT OF THE EUROPEAN COUNCIL

The creation of the post of President of the European Council is a major innovation of the Treaty of Lisbon. The latter is elected by the European Council by a qualified majority for a term of two and a half years, renewable once. The European Council may end that term in the event of impediment or gross misconduct, in accordance with the same procedure. The Treaty of Lisbon stresses that the President may not hold a national office, but does not rule out potential compatibility with an office within another European institution.

The main role of the President is to improve the cohesion and effectiveness of the work carried out within the European Council. The President therefore assumes the functions which were previously carried out by the rotating Presidencies of the EU, namely:

  • chairing and driving forward the work of the European Council;
  • ensuring the preparation and continuity of the work of the European Council;
  • facilitating cohesion and consensus within the European Council.

The President is also required to present a report to the European Parliament after each of the meetings of the European Council.

Finally, the President of the European Council fulfils a diplomatic function by increasing the visibility of Europe. The President fulfils the latter role without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.

SUMMARY TABLE

Articles Subject

Treaty on European Union

15

Role and composition of the European Council; appointment and powers of the President of the European Council

Treaty on the Functioning of the European Union

235 and 236

Functioning and responsibilities of the European Council

The Council of the European Union

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The Council of the European Union

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Institutional affairs > Building europe through the treaties > The Amsterdam treaty: a comprehensive guide

The Council of the European Union

A Protocol on the institutions with the prospect of enlargement has been annexed to the EU Treaty and to the Treaties establishing the European Communities. It lays down a number of institutional conditions that will have to be met at the next enlargement and provides for another Intergovernmental Conference to be convened before the membership of the European Union exceeds twenty. The present structure is the legacy of an organisation designed for six member states and although it has been adjusted to take account of the accession of new members, it still operates today on the same institutional principles.

The Council is facing two main questions:

  • weighting of votes of Member States’ representatives;
  • the scope of qualified majority voting.

The Protocol on the institutions incorporates in a common framework the questions of the weighting of votes in the Council and the size of the Commission, the underlying idea being to revise the Community system so that the relative influence of the small and medium-sized countries should not one day become disproportionate to the size of their population.

The question of the weighting is particularly important owing to the extension of qualified majority voting, since that method of decision-making applies to most of the new provisions introduced by the Treaty of Amsterdam. At the same time, qualified majority voting has also been extended to a number of existing provisions.

The General Secretariat of the Council now also has a special role to play in the context of common foreign and security policy.

RE-WEIGHTING OF VOTES AND DUAL MAJORITY

Re-weighting of votes or the introduction of a dual majority are two of the options between which the Member States will have to choose before the next enlargement of the European Union. Re-weighting would mean that the proportion of votes allocated to the large countries would be increased in relation to those of the small States. A dual majority, on the other hand, would not, in theory, alter the present weighting but would provide that, for a decision to be adopted within the Council, it would not only have to obtain a number of votes representing a qualified majority, but also correspond to a threshold, yet to be decided on, of the population of the European Union.

The Protocol on the institutions links these questions affecting the Council with the reform of the Commission. In practical terms it requires that, on the date of entry into force of the first enlargement, the Commission will comprise one national of each of the Member States, provided that, by that date, the weighting of the votes in the Council has been modified, whether by re-weighting of the votes or by dual majority, in a manner acceptable to all Member States.

GREATER USE OF QUALIFIED MAJORITY VOTING

Use of qualified majority voting has been extended to cover the following provisions of the EC Treaty (the article numbers reflect the new numbering):

  • the coordination of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals (right of establishment, Article 46(2));
  • the adoption or amendment of the framework programme for research (Article 166);
  • the setting-up of joint undertakings for research and technological development (Articles 171 and 172).

Qualified majority voting also applies to the following new areas introduced into the EC Treaty:

  • guidelines on employment (Article 128);
  • adoption of incentive measures for employment (Article 129);
  • adoption of measures to strengthen customs cooperation between Member States and between them and the Commission (Article 135)
  • measures to combat social exclusion (Article 137 (2));
  • adoption of measures to ensure the application of the principle of equal opportunities and equal treatment of men and women (Article 141 (3));
  • promotion of public health (Article 152 (4));
  • the determining of general principles governing the right of access to European Parliament, Council and Commission documents (Article 255);
  • measures to combat fraud affecting the financial interests of the Community (Article 280);
  • adoption of measures on the establishment of statistics (Article 285);
  • establishment of an independent supervisory body responsible for monitoring processing of personal data (Article 286);
  • laying down the conditions governing the application of the EC Treaty to the outermost regions (Article 299);

Qualified majority voting is now also used in two cases relating to the common foreign and security policy (Title V of the EU Treaty):

  • when adopting decisions implementing a common strategy decided on by the European Council;
  • when adopting any decision implementing joint actions or common positions adopted in advance by the Council.

GENERAL-SECRETARIAT

The Secretary-General of the Council now serves as High Representative for the common foreign and security policy, while the running of the General Secretariat is handled by a Deputy Secretary-General who, like the Secretary-General, is appointed by unanimous Council decision.

The High Representative for the common foreign and security policy assists the Presidency and the Council, in particular by contributing to the formulation, preparation, and implementation of policy decisions. He also fulfils a representative function and is assisted by a policy planning and early warning unit under his responsibility.

Another Normative about The Council of the European Union

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Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

The Council of the European Union

The role of the Council of the European Union remains unchanged. It shares law-making and budget power with the European Parliament and also has a role in defining and coordinating policies. However, the Treaty of Lisbon makes substantial changes in terms of the organisation of the Council’s work and internal structure.

The Treaties of Amsterdam and Nice had already made extensive changes to the system of voting in the Council in order to adapt it to the successive enlargements of the European Union (EU). The system of vote weighting has now been abolished and replaced by a new dual majority system. In addition, the Treaty of Lisbon improves the Council’s transparency by adding several provisions concerning its configurations and Presidency.

THE NEW DEFINITION OF QUALIFIED MAJORITY

The decision-making process within the Council is changing fundamentally. The earlier amending treaties had established a system of vote weighting. Each Member State had a certain number of votes depending on its demographic weight. Under this system, a decision was adopted only if a certain vote threshold was reached by a majority of Member States. Since 1 January 2007, a qualified majority was achieved if 255 out of 345 votes were cast by at least 14 Member States. The weighting of votes in the Council favoured the representation of small Member States compared with the larger States and was regularly the subject of long negotiations.

The Treaty of Lisbon simplifies the system with a view to improving its efficiency. It abolishes the weighting of votes and establishes a dual majority system for adopting decisions. From now on, a qualified majority is achieved if it covers at least 55% of Member States representing at least 65% of the population of the EU. Where the Council does not act on a proposal from the Commission, the qualified majority should cover at least 72% of Member States representing at least 65% of the population. This system therefore assigns a vote to each Member State while taking account of their demographic weight. The Treaty of Lisbon also provides for a blocking minority composed of at least four Member States representing over 35% of the EU population.

This new system of qualified majority voting will apply with effect from 1 November 2014. However, until 31 March 2017, any Member State may request, on a case by case basis, that a decision is taken in accordance with the rules in force before 1 November 2014 (i.e. in accordance with the qualified majority as defined by the Treaty of Nice).

In addition, Member States may request the application of the “Ioannina compromise” enshrined by the Treaty of Lisbon in Declaration No 7. This provision enables a group of Member States to demonstrate their opposition to a text even if the group is not large enough in number to constitute a blocking majority. In this case, the group of Member States must notify the Council of its opposition to the adoption of the act. The Council must then do everything within its power to find a satisfactory solution in order to address the concerns raised by the group of Member States. Moreover, these deliberations within the Council are completed within a reasonable period and should not prejudice the time-limits laid down by the law of the Union. The “Ioannina compromise” therefore remains, above all, a political compromise expressing the Council’s wish to find an agreement which satisfies as many Member States as possible on important issues.

The Treaties of Amsterdam and Nice greatly increased the scope of qualified majority voting. The Treaty of Lisbon confirms this trend. The Council now acts by qualified majority, except where the Treaties require a different procedure. Specifically, qualified majority voting is extended to new areas such as the common policy on asylum, culture or sport.

THE CONFIGURATIONS OF THE COUNCIL

For the sake of transparency, the Treaty of Lisbon specifies and clarifies the way in which the Council functions. The Council sits in different configurations, within which the competent Ministers of Member States meet. This practice is now laid down in the Treaty on European Union. The Treaty refers explicitly to two Council configurations:

  • the General Affairs Council, which is responsible for ensuring consistency in the work of the different Council configurations and for preparing for European Council meetings;
  • the Foreign Affairs Council, which is responsible for developing the foreign policies of the European Union.

The European Council adopts by qualified majority the list of other configurations in which the Council meets.

The Treaty of Lisbon also improves transparency in terms of decision-making within the Council. Like the European Parliament, the Council now sits in public when deliberating and voting on a legislative bill.

THE PRESIDENCY OF THE DIFFERENT COUNCIL CONFIGURATIONS

The Presidency of the different Council configurations continues to be held by representatives of the Member States on the basis of an equal rotation system. The Foreign Affairs Council is an exception, being chaired by the High Representative of the Union for Foreign Affairs and Security Policy. Moreover, the rules on the exercise of the Presidency of the Council have been adopted by European Council Decision No 2009/881/EU.

SUMMARY TABLE

Articles Subject

Treaty on European Union

16

Role and composition of the Council of the EU

Treaty on the Functioning of the European Union

237 to 243

Functioning of the Council of the EU

Enforcing judgments: the transparency of debtors' assets

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Enforcing judgments: the transparency of debtors’ assets

Outline of the Community (European Union) legislation about Enforcing judgments: the transparency of debtors’ assets

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Justice freedom and security > Judicial cooperation in civil matters

Enforcing judgments: the transparency of debtors’ assets

Even with a court judgment obtained, recovering cross-border debts may be difficult for creditors in practice if no information on the debtors’ assets or whereabouts is available. Because of this, the European Commission has adopted a Green Paper launching a public consultation on how to improve the recovery of debts through possible measures such as registers and debtor declarations.

Document or Iniciative

Green Paper of 6 March 2008 on the effective enforcement of judgments in the European Union: the transparency of debtors’ assets [COM(2008) 128 final – Not published in the Official Journal].

Summary

The late and non-payment of debts is detrimental to business and customers alike, particularly when no information is available on the debtor’s assets or whereabouts. This is a particular cross-border issue in debt recovery and has the potential to affect the smooth running of the internal market. In launching a public consultation, the European Commission has outlined the problems of the current situation and possible solutions in this Green Paper. Interested parties can submit their comments by 30 September 2008.

State of play

The search for a debtor’s address and information on his financial situation is often the starting point for enforcement proceedings. At national level, most Member States mainly use two different systems for obtaining information, either:

  • systems of declaration of the debtor’s entire assets or at least a part of it to satisfy the claim;
  • search systems with specific information (registers).

In this Green Paper, the European Commission focuses more on a series of measures instead of one single European measure to allow the creditor to obtain reliable information on the debtor’s assets and whereabouts within a reasonable period of time. Possible measures include:

  • drawing up a manual of national enforcement laws and practices: at present, there is very little information on the different enforcement systems in the 27 European Union Member States. Such a manual could contain all sources of information on a person’s assets, which could be accessed in each country; contact addresses, costs, etc.
  • increasing the information available and improving access to registers: the main sources of information on the debtor are public registers, such as commercial or population registers. However, these vary from one Member State to the next. The Commission is asking whether to increase information available in and access to commercial registers and in what way access to existing population registers should be enhanced. Furthermore, access to social security and tax registers by enforcement authorities may be increased, while respecting rules of data protection and social and fiscal privacy.
  • exchange of information between enforcement authorities: currently, enforcement bodies are not able to directly access the (non-public) registers of other Member States which are open to national enforcement bodies. In addition, there are no international instruments dealing with the exchange of information between national enforcement bodies. In the absence of a Europe-wide register, enhancing cooperation between national enforcement authorities and direct exchange of information between them may a possible solution.
  • measures relating to the debtor’s declaration: enforcement bodies have in several Member States the option to question the debtor directly regarding his assets, whereas in some Member States the debtor’s declaration is made in the form of a testimony before the enforcement court. In some Member States, the debtor has to fill out mandatory forms, and in others a debtor’s declaration does not exist at all. The European Commission is considering introducing a European Assets declaration, obliging the debtors to disclose all assets in the European judicial area. In this way, the transparency of the debtor’s assets would not be limited by the territoriality of the enforcement proceedings.

Primary law

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Primary law

Outline of the Community (European Union) legislation about Primary law

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Institutional affairs > The decision-making process and the work of the institutions

Primary law

Primary law (primary or original source of law) is the supreme source of law of the European Union (EU), that is it prevails over all other sources of law. The Court of Justice is responsible for securing that primacy through a variety of forms of action, such as the action for annulment (Article 263 of the Treaty on the Functioning of the European Union (TFEU) and the preliminary ruling (Article 267 of the TFEU).

Primary law consists mainly of the Treaties of the EU. These Treaties contain formal and substantive provisions, which frame the implementation of the policies of the European institutions. They also determine the formal rules that allocate the division of competences between the European Union and Member States. They also lay down substantive rules that define the scope of the policies and provide a structure for the action taken by the institutions regarding each of them.

Scope of primary law

The primary law is made up of the set of founding Treaties of the EU, amended and adapted by different Treaties and Acts. It concerns:

  • the founding Treaties establishing the European Union;
  • the major Treaties amending the EU;
  • the Protocols annexed to those Treaties;
  • additional Treaties making changes to specific sections of the founding Treaties;
  • the Treaties of accession of new Member States to the EU.

The Treaties establishing the different European Communities are:

  • the Treaty of Paris (18 April 1951);
  • the Treaties of Rome (Euratom Treaty and the Treaty establishing the European Economic Community) (25 March 1957);
  • the Maastricht Treaty on European Union (7 February 1992).

The amending Treaties are:

  • the Single European Act (17 and 28 February 1986);
  • the Treaty of Amsterdam (2 October 1997);
  • the Treaty of Nice (26 February 2001);
  • the Treaty of Lisbon (13 December 2007) entered into force on 1 December 2009.

The additional Treaties making changes to specific sections of the founding treaties are:

  • the Treaty on the merger of the executive institutions (8 April 1965);
  • the Treaty amending certain budgetary provisions of the Community treaties (22 April 1970);
  • the Treaty of Brussels amending certain financial provisions of the Community treaties and establishing a Court of Auditors (22 July 1975);
  • the “Act” on the election of members of the European Parliament by direct universal suffrage (20 September 1976).

The Treaties of Accession:

  • United Kingdom, Ireland, Denmark and Norway (22 January 1972);
  • Greece (28 May 1979);
  • Spain and Portugal (12 June 1985);
  • Austria, Finland, Norway and Sweden (24 June 1994);
  • the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (16 April 2003);
  • Romania and Bulgaria (25 April 2005).

The Acts of Accession signed by Norway on 22 January 1972 and 24 June 1994 never came into force. A Treaty signed on 1 February 1985 gives Greenland a special status.

Scope of primary law

Regarding the geographical scope of primary law, Article 355 of the TFEU provides that EU law is to apply to the metropolitan territories of the Member States and certain islands and overseas territories (such as Madeira, the Canaries and the French overseas departments). It also applies in territories where a Member State is responsible for external relations (Gibraltar and the Åland islands, for instance).

Article 355 of the TFEU provides that the Council may lay down specific conditions for specific regions. It has done so in customs matters for Gibraltar and Saint-Pierre-et-Miquelon. Finally, Article 355 of the TFEU specifically excludes certain regions such as the Faroe Islands.

Regarding the scope of primary law in terms of time, it applies as soon as the Treaty enters into force unless a transitional period is scheduled. Regarding duration, instruments of primary law are generally concluded for an unlimited period (for example, the TFEU in accordance with Article 356).

Legal status of primary law

Regarding commitments entered into by the Member States between themselves, if they:

  • date from before the Treaty of Rome, they cease to be applicable. These commitments are then subject to the rules of international law on the succession to Treaties. Article 350 of the TFEU, for instance, expressly authorises certain regional associations between Belgium, Luxembourg and the Netherlands.
  • date from after the Treaty of Rome, they are basically subject to the general obligation of the principle of cooperation stated in Article 4 of the TEU, whereby Member States must refrain from taking any measure which could jeopardise the attainment of the TEU objectives.

Regarding commitments entered into by the Member States with third countries, if they:

  • date from before the Treaty of Rome, third-party rights are preserved by Article 307 of the EC Treaty and upheld by the Court of Justice (CJEU, International Fruit Company, 12 December 1972). In other words, these agreements can be relied on in actions against the Community since powers have been transferred to it from the Member States. By way of exception, rights deriving from agreements that are incompatible with the EC Treaty cannot be relied on against it.
  • date from after the Treaty of Rome, they are acknowledged as valid, except if the state had exceeded its powers (if the EU has a competence which the State has not respected) and if the agreement violates the general obligation of the principle of cooperation).

The Court of Justice of the EU can interpret the Treaties. But it cannot rule on their validity, which depends on international law.

In certain circumstances, the Court of Justice of the EU allows individuals to rely on provisions of primary law in certain circumstances. The provisions have to have direct effect and their content must be sufficiently clear, precise and unconditional (CJEU 19 December 1968).

Legislative procedures

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Legislative procedures

Outline of the Community (European Union) legislation about Legislative procedures

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > Building europe through the treaties > The Lisbon Treaty: a comprehensive guide

Legislative procedures

The Treaty of Lisbon is aimed at strengthening the capacity of the European Union (EU) to decide and to act, whilst guaranteeing the legitimacy of decisions adopted. It therefore reforms the EU’s decision-making process, in particular by amending the legislative procedures in force.

Article 289 of the Treaty on the Functioning of the EU now only refers to two types of legislative procedure:

  • ordinary legislative procedure;
  • special legislative procedures.

In addition, the Treaty of Lisbon introduces ‘passerelle clauses’. These clauses enable the ordinary legislative procedure to be generalised, under certain conditions, to areas that were initially outside its scope.

ordinary legislative procedure

The ordinary legislative procedure replaces the former codecision procedure. This procedure is the most legitimate from a democratic point of view. It involves the European Parliament as a co-legislator at the Council’s side. Over time, it has also become the most widely used legislative procedure. The Treaty of Lisbon therefore confirms this trend by changing its name and establishing it as a common law procedure. Continuing on from previous Treaties, the Treaty of Lisbon also extends the ordinary legislative procedure to new areas of policy (see file “Extension of voting by qualified majority and the ordinary legislative procedure”).

The modalities of the ordinary legislative procedure are the same as those of the former codecision procedure. They are described in Article 294 of the Treaty on the Functioning of the EU. The Council and the Parliament are placed on an equal footing. The two institutions adopt legislative acts either at first reading, or at second reading. If, following the second reading, the two institutions have still not reached agreement, a Conciliation Committee is convened.

In addition, the voting rule under the ordinary legislative procedure is qualified majority. In order to facilitate decision-making and strengthen the effectiveness of the procedure, the Treaty of Lisbon has also laid down a new definition of a qualified majority (see file “Council of the European Union”).

special legislative procedures

Special legislative procedures replace the former consultative, cooperation and assent procedures. The objective is to simplify the EU’s decision-making process by making it clearer and more effective. As their name indicates, these procedures derogate from the ordinary legislative procedure and therefore constitute exceptions.

In special legislative procedures, the Council of the EU is, in practice, the sole legislator. The European Parliament is simply associated with the procedure. Its role is thus limited to consultation or approval depending on the case.

Unlike the ordinary legislative procedure, the Treaty on the Functioning of the EU does not give a precise description of special legislative procedures. The rules of special legislative procedures are therefore defined on an ad hoc basis by the Articles of the Treaty on European Union and the Treaty on the Functioning of the EU that provide for their implementation.

PASSERELLE CLAUSES

The Treaty of Lisbon has introduced passerelle clauses in order to be able to apply the ordinary legislative procedure to areas for which the Treaties had laid down a special legislative procedure. Furthermore, these clauses also allow voting by qualified majority to be applied to acts that are to be adopted unanimously.

There are two types of passerelle clause:

  • the general passerelle clause applying to all European policies; activation of this clause must be authorised by a Decision of the European Council acting unanimously (see file “Amendment of Treaties”);
  • specific passerelle clauses relating to certain European policies.

Specific passerelle clauses have some procedural particularities with respect to the general passerelle clause. As an example, national Parliaments do not generally have a right to object, which is granted to them by the general clause. In other cases, the application of certain specific clauses may be authorised by a Decision of the Council, and not of the European Council as is the case for the general clause. The implementing rules for the specific clauses therefore differ from case to case and are described in the Articles of the Treaties providing for their application.

There are six specific passerelle clauses to be applied to:

  • the multiannual financial framework (Article 312 of the Treaty on the Functioning of the EU);
  • the Common Foreign and Security Policy (Article 31 of the Treaty on European Union);
  • judicial cooperation concerning family law (Article 81 of the Treaty on the Functioning of the EU). This specific clause is the only clause regarding which national Parliaments retain a right to object;
  • reinforced cooperation in areas governed by unanimity or by a special legislative procedure (Article 333 of the Treaty on the Functioning of the EU);
  • social affairs (Article 153 of the Treaty on the Functioning of the EU);
  • environmental matters (Article 192 of the Treaty on the Functioning of the EU).

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.