Out-Law / Your Daily Need-To-Know

The Lisbon Treaty: a guide for in-house lawyers

Out-Law Guide | 01 Dec 2009 | 4:29 pm | 4 min. read

This guide was published on 1st December 2009, the day the Lisbon Treaty came into effect. Much of the press coverage on the Lisbon Treaty has been dominated by institutional issues. No concerted...

This guide was published on 1st December 2009, the day the Lisbon Treaty came into effect.

Introduction

Much of the press coverage on the Lisbon Treaty has been dominated by institutional issues. No concerted effort has been made at national level to translate the relevance of Lisbon for mainstream commercial activity. The following brief note therefore highlights some of the main changes that may affect day-to-day practice, covering new terminology, renumbering of Articles, developments in substantive and procedural law and suggestions for referencing the new Treaty Articles.

Changes in terminology

The following are changes in terminology that will be used by the EU in the future, post-Lisbon:

  • All references to "European Community" or "European Communities" disappear and are replaced by "European Union". The European Commission expects us to use "EU Law" in future, instead of "EC Law".
  • The European Communities Treaty (EC Treaty) has been amended and renamed the "Treaty on the Functioning of the European Union (TFEU)"
  • The term "common market" is now formally replaced by the "internal market"
  • The current European Court of Justice is renamed the "the Court of Justice"
  • The current Court of First Instance is renamed the "the General Court"
  • "The Court of Justice of the European Union" refers collectively to the Court of Justice, the General Court and any specialist Judicial Panels created (the only current one being the EU Civil Service Panel)

 A number of these changes will require amendments to UK Law and provision is made in the European Union (Amendment) Act 2008 for those changes to be made formally by statutory instrument.

Renumbering of Treaty Articles

A complete table of equivalences (28-page / 118KB PDF) showing Article numbers pre and post Lisbon is available. Some of the most commonly encountered changes will include:

Previous numbering contained in the EC Treaty

New Article number contained in the TFEU - sometimes with textual changes

Article 12 (non discrimination - nationality)

Article 18

Article 28 (free movement of goods)

Article 34

Article 30 (justifications for restricting free movement of goods)

Article 36

Article 39 (free movement of workers)

Article 45

Article 43 (freedom of establishment)

Article 49

Article 49 (freedom to provide services)

Article 56

Article 56 (free movement of capital)

Article 63

Article 81 (competition - restrictive agreements)

Article 101

Article 82 (competition - abuse of dominance)

Article 102

Article 86 (public undertakings/special exclusive rights)

Article 106

Article 87 (state aid)

Article 107

Article 230 (judicial review of Community acts)

Article 263

Article 234 (preliminary references to the Court of Justice)

Article 267

Some of the key substantive and procedural changes of interest to commercial practice

There has been little change to the substantive law contained in the European Community Treaty. The following, however, merit a brief note:

  1. The Lisbon Treaty provides a more secure legislative platform for the EU to legislate on areas such as Energy and Intellectual Property, potentially widening the scope of existing forms of legislative intervention. Lisbon also offers the potential for greater legislative involvement in the field of data protection (Art 16(2) TFEU) and in alternative methods of dispute resolution (Art 81(2)(g) TFEU).
  2. Fundamental rights are given an elevated legal status, but within a narrow straightjacket. The Charter of Fundamental Rights of the European Union (2000) will have equal legal status with the TFEU and Treaty on European Union (save for a number of express derogations, including the fact that the Charter will not create any new social or employment rights that could undermine existing UK Law). Furthermore, the Lisbon Treaty states that the Charter will not extend the competences of the EU.
  3. The relaxation of locus standi under Art 263 TFEU (ex Art 230 EC) for individuals seeking judicial review of certain types of regulatory acts made by the European Commission etc. The removal of the requirement to prove that the regulatory act was also of "individual concern" to the claimant could widen the number of challenges made to European Commission activities.

Referencing Treaty Articles

When the Treaty of Rome was amended significantly in 1999, the Luxembourg Courts published guidelines on how to refer to the pre and post reform Treaty Articles. As yet, no similar guide has been published for Lisbon purposes. The following suggestions are thus offered on the basis of previous experience.

  • To refer to the post-Lisbon factual situation where Lisbon makes no change to the previous EC Treaty Article, use e.g. Art 102 TFEU (ex Art 82 EC)
  • To refer to a post-Lisbon factual situation where Lisbon has made a change to the previous EC Treaty Article, use e.g. Art 107 TFEU
  • To refer to a pre-Lisbon factual situation covered by the Treaty establishing the European Community where Lisbon makes no change to the previous Treaty Article, use e.g. Article 82 EC ([ex 86;] post Lisbon, Article 102 TFEU). Note: The reference in square brackets can normally be omitted unless the relevant set of facts occurred in a short period after 1st May 1999 (when the Treaty of Amsterdam came into effect).

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