The ORs in the Treaties
Since the adoption of the Lisbon Treaty, which entered into force on December 1st, 2009, the European Union organizes the status of ORs in primary law through a dual mechanism. While incorporating in article 349 the content of article 299 (2), article 355 on the territorial scope of the Treaty, also recalls that the provisions of the Treaties are applicable to the outermost regions, in accordance with Article 349.
The article 349 TFEU, for its part, recognizes the concept of outermost regions, acting as a legal, autonomous and sufficient basis, specifying that the Council “on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the Treaties to those regions, including common policies”.
Thanks to this recognition at the highest level of the European legal order, the application of a flexible and evolving status for the outermost regions within the EU is now ensured. For example, cohesion policy helps to modernize and diversify the economic activities of ORs through public and private investments financed by the European Structural and Investment Funds (ESI Funds) and the additional financial allocation provided under the European regional development fund (ERDF), offsetting additional costs resulting from their extreme remoteness. In addition, the outermost regions benefit from a Programme of Options Specifically Relating to Remoteness and Insularity (POSEI) supporting production, processing and marketing of agricultural products as well as specific measures to help the fishing sector to market its products.
Other horizontal European programs offer direct aids or financial instruments that can benefit businesses, research and innovation centers, civil society and young people. This is the case, for example, of the European program for small and medium-sized enterprises (COSME), the education, training, youth and sport program (ERASMUS +) or even the Horizon 2020 research program, as demonstrated by the recent launch of a specific call for ORs (Forward project).
The specific characteristics of the outermost regions are also recognized by the European Union’s tax and customs policy. Progress has also been made in the field of energy policy, transport and research and innovation.
Evolution of the treatment of the outermost regions in the Treaties
The Treaty of Maastricht or Treaty of the European Union, signed on February 7th 1992 and in effect since November 1st 1993, amended the founding Treaties of the European Communities (Treaty of Paris in 1951, Treaty of Rome in 1957 and the Single European Act in 1986). It represents a key stage in the process of European integration as the initial economic objective of the Communities, now backed by the objective of a political construction of Europe. This treaty has thus, and in particular, facilitated the realization of the European Economic and Monetary Union.
Although devoid of any legal consequence, the Declaration N°26 of the Maastricht Treaty marked the first official recognition of the outermost regions.
This declaration develops the main physical and socio-economic characteristics of these regions, “the permanence and combination of which severely restrain their economic and social development”. In addition, “it considers that, while the provisions of the Treaty establishing the European Community and secondary legislation apply automatically to the outermost regions, it is nonetheless possible to adopt specific measures to assist them in as much and as long as there is an objective need to take such measures with a view to the economic and social development of those regions. Such measures should have as their aim both the completion of the internal market and a recognition of the regional reality to enable the outermost regions to achieve the average economic and social level of the Community”.
The Treaty of Amsterdam, revised the existing treaties, by merging and consolidating their content. It allows, in particular, a reinforcement of the position of human rights in the Union, the integration of the Schengen acquis within the scope of the European Union, the establishment of an area of freedom, security and justice or strengthening the means of action in foreign policy.
The Treaty, signed in the Dutch capital on October 2nd 1997, entered into force on May 1st 1999.
Concerning the outermost regions, article 299.2 defines the common characteristics of these regions. This article, until the entry into force of the Lisbon Treaty, provided the legal basis to adopt measures taken by the European Union in favor of these regions.
The article 299.2 is an important step towards the establishment of a strong legal basis for the outermost regions. It is a turning point of a long period of time, starting in the late 1980s, characterized by the permanent dialogue and collaboration between the regions, through an unprecedented mobilization and the full support of their respective states (France, Spain and Portugal) and finally though actions carried out to bring awareness to the EU institutions to reach the approval of a stable legal framework for the outermost regions.
Since the adoption of this article, the demand for a global and integrated strategy for the outermost regions has been supported by various conclusions of the European Council and subsequently implemented through the various Communications of the European Commission.
Draft Constitutional Treaty
At the beginning of the 2000s, and given the forthcoming prospect of future enlargement, the ORs are mobilized to secure the measures obtained in their favor.
The Conclusions of the work of the Convention for the Future of Europe were presented to the Thessaloniki European Council in July 2003 in the form of a draft constitutional treaty designed to amend and replace the treaties then in force. Within this European constitution, the institutional position of ORs was preserved, and consolidated by the text of the future Constitution, in Article III-424. This constitutional basis was indeed safeguarding all the advantages recognized in the previous Treaty of Amsterdam in Article 299.2. and intended to be the new legal instrument of reference for adapting Community policies for the benefit of these regions.
The main objectives of the Lisbon Treaty were to increase democracy in the EU, the efficiency of the Union’s actions and its ability to cope with global challenges such as climate change, security and sustainable development. It was signed in Lisbon on December 13, 2007 and entered into force on December 1st, 2009.
The inclusion of a specific article for the outermost regions in the body of the new Treaty on the Functioning of the European Union (TFEU), following the Article 299.2 of the TEC, is the result of a strong partnership between the French, Spanish and Portuguese States, the EU and the ORs.
If Article 349 TFEU confirms the need for an adapted approach for the outermost regions, article 355 TFEU states that: “The provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349”.
While Saint-Martin wished to maintain its status as an OR, Saint-Barthélemy opted for a change of status by becoming an Overseas Country and Territory (OCT) in 2012.
As for Mayotte, it has ceased from January 1st 2014, to be an OCT (to which the provisions of part four of the Treaty on the Functioning of the European Union apply) in order to become an outermost region under Article 349 following an official request for a change of status from France, dated of October 26 2011, addressed to the European Council. This led to a reference to Mayotte in this article and in the article 355 (1) TFEU.
France’s request followed Mayotte’s choice expressed by referendum on March 29, 2009, to become an overseas department.