5.

Tourism in the European area

5.1. Tourism in the European Union: specific treatment

➢ European Union is a supranational organization with legal personality (see art. 47

Treaty on European Union –TEU) that has its own sources of law and common
policies, being a part of the legal systems of the Member States.

➢ Origins

• Treaty of Paris setting up the European Coal and Steel Community (ECSC).

❖ It was the origin of the EU institutions as we know them today.

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 ❖ Created in 1951, in the aftermath of World War II, the ECSC represented the
first step towards European integration.

❖ The aim of the treaty was to contribute, through the common market for
coal and steel, to:

- Economic expansion.
- Employment.
- Better living standards

• Treaty establishing the European Economic Community (EEC), the Treaty of

Rome, signed on March 25th, 1957, at the same time of another treaty: European
Atomic Energy Community (Euratom).

• EEC aimed at working towards integration and economic growth, through trade.

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❖ It created a common market based on the free movement of:

• goods
• people
• services
• capital

❖ Specific goals:

- Lay the foundations of an ‘ever closer union’ among the peoples of

Europe.

- Ensure the economic and social progress of their countries by joint

action to eliminate trade and other barriers between them.

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- Improve their citizens’ living and working conditions.

- Ensure balanced trade and fair competition.

- Reduce the economic and social differences between the EEC’s various
regions.

- Gradually abolish restrictions on international trade through a common

trade policy.

- Abide by the principles of the UN charter.

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 - Pool their resources to preserve and strengthen peace and liberty and
call on other peoples of Europe who share this ideal to join them in
these efforts.

❖ Customs union:

- The treaty abolished quotas (i.e. ceilings on imports) and customs

duties between its 6 signatories.

- It established a common external tariff on imports from outside the

EEC, replacing the previous tariffs of the different states.

- The customs union was accompanied by a common trade policy.

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❖ Joint Policies:

- The treaty established certain policies from the start as joint policies
among the member countries, including:

▪ Common agricultural policy.

▪ Common trade policy.
▪ Transport policy.

- It allowed for the creation of other joint policies, should the need arise.
After 1972, the EEC established joint action in the fields of environmental,
regional, social and industrial policy.

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• Treaty on European Union, February 7th, 1992 Creation of European Union

• Nowadays:

Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community, December 13th, 2007.

❖ Entry into force on December 1st, 2009.

❖ The Treaty establishing the European Community is renamed the ‘Treaty

on the Functioning of the European Union’ (TFEU) and the term
‘Community’ is replaced by ‘Union’ throughout the text.

❖ The Treaty of Lisbon gives the EU full legal personality.

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 - Therefore, the Union obtains the ability to sign international treaties
in the areas of its attributed powers or to join an international
organization.

- Member States may only sign international agreements that are

compatible with EU law.

❖ The Treaty for the first time provides for a formal procedure to be followed
by Member States wishing to withdraw from the European Union in
accordance with their constitutional requirements, namely Article 50 of
the Treaty on European Union (TEU).

- It was the way UK abandoned EU on February 1st, 2020.

- So far, the UK is the only sovereign country to have left the EU.

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❖ Intellectual property rights, sport, space, tourism, civil protection and
administrative cooperation are now possible subjects of EU law-making.

❖ On the Common Security and Defense Policy (CSDP) (5.1.2), the Treaty of
Lisbon introduces a mutual defense clause which provides that all Member
States are obliged to provide help to a Member State under attack.

❖ A solidarity clause provides that the Union and each of its Member States
have to provide assistance by all possible means to a Member State
affected by a human or natural catastrophe or by a terrorist attack.

EU has lately faced several crises linked to, in particular:

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❖ Brexit.

❖ The multiannual financial framework.

❖ The COVID-19 pandemic or

❖ The Russian invasion of Ukraine.

The handling of these crises has again exposed shortcomings in the current
system of governance, and the lack of efficient decision-making has
contributed to a decrease in public support for the European project.

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➢ Spain joined European Union in 1986. As a Member State, Spain ceded some
aspects of its sovereignty: different competences. And it did it by means of an
organic law, according to art. 93 SC (Spanish Constitution): Organic Law 10/1985,
of Authorization for the Adhesion of Spain to European Communities.

In that sense, powers derived from the Constitution were vested in an

international organization.

➢ According to the principle of conferral, the Union shall act only within the limits of
the competences conferred upon it by the Member States in the Treaties to attain
the objectives set out therein. Competences not conferred upon the Union in the
Treaties remain with the Member States (art. 5.2 Treaty on European Union, TEU)

➢ Related to the previous idea, it is important to pay attention to the precedence

principle (or primacy principle), which means that European law is superior to the

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 national laws of Member States. The precedence principle applies to all European
acts with a binding force. Therefore, Member States may not apply a national rule
which contradicts to European law.

This principle is not directly regulated in the Treaties, but has been enshrined by
the Court of Justice of the European Union (CJEU), just as the principle of direct
effect.

➢ In any case, by virtue of the principle of proportionality, the content and form of
Union action shall not exceed what is necessary to achieve the objectives of the
Treaties (art. 5.4 TEU).

➢ The Treaty of Lisbon for the first time clarifies the powers of the Union. It
distinguishes between three types of competences:

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 • Exclusive competences, where the Union alone can legislate, and Member
States only implement.

• Shared competences, where the Member States can legislate and adopt
legally binding measures if the Union has not done so.

• Supporting competences, where the EU adopts measures to support or

complement Member States’ policies.

➢ Exclusive competences: European Union has a series of exclusive competences.

Regarding to them, only the Union may legislate and adopt legally binding acts, the
Member States being able to do so themselves only if so empowered by the Union

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or for the implementation of Union acts (art. 2.1 Treaty on the Functioning of the
European Union-TFEU).

• Those competences are related to, for instance, customs union or monetary
policy for the Member States whose currency is the euro.

According to the art. 3 TFEU:

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning
of the internal market;

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 (c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common

fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative
act of the Union or is necessary to enable the Union to exercise its internal
competence, or in so far as its conclusion may affect common rules or alter
their scope.

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➢ Shared competences with the Member States in a specific area. In this case,
European Union and the Member States may legislate and adopt legally binding
acts in that area.

The Member States shall exercise their competence to the extent that the Union
has not exercised its competence (art. 2.2 TFEU).

That is related to the principle of subsidiarity, where European Union shall act if
the objectives of the proposed action cannot be sufficiently achieved by the
Member States, but can rather, by reason of the scale or effects of the proposed
action, be better achieved at Union level (art. 5.3 TEU).

Some examples of shared competences are those regarding: internal market,

social security, environment, consumer protection, energy or transport.

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• According to art. 4.2 TFEU, shared competence between the Union and the
Member States applies in the following principal areas:

(a) internal market;

(b) social policy;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine

biological resources;

(e) environment;

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(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters.

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➢ There is a third category of competences assigned to European Union: supporting
competences.

They are competences to carry out actions to support, coordinate or supplement

the actions of the Member States. The areas of such action shall, at European level,
be (art. 6 TFEU):

(a) protection and improvement of human health;

(b) industry;
(c) culture;

(d) tourism;
(e) education, vocational training, youth and sport;

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 (f) civil protection;
(g) administrative cooperation.

➢ In tourism matters, article 195.1 TFEU states that the EU shall complement the
action of the Member States in the tourism sector, in particular by promoting the
competitiveness of Union undertakings in that sector.

• To that end, EU action shall be aimed at:

(a) encouraging the creation of a favourable environment for the development of

undertakings in this sector;

(b) promoting cooperation between the Member States, particularly by the

exchange of good practice.

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But the tourist is not included as the center of these measures nor is there any
reference to their protection, and although the European Parliament and the
Council may establish specific measures to complement actions within the
Member States to achieve the aforementioned objectives,

it will be done "excluding any harmonization of the laws and

regulations of the Member States".

in summary, European Union has no competence in the establishment

of a common tourism policy.

Notwithstanding that, by means of environmental and consumer protection

legal acts (either directives or regulations), European Union is influencing to a
certain extent the tourism policy of the Member States.

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 -------------
➢ Tourism represents an important part of the EU’s overall economy. In 2019, it
represented nearly 10% of the EU GDP and accounted for around 23 million jobs
in the Union.

➢ Tourism policy is a means by which the EU can pursue broader employment and
growth objectives.

Nowadays, the environmental dimension of tourism is gaining in significance. This

is already reflected in projects involving sustainable, responsible and ethical
tourism.

➢ Since 2001, the Commission has contributed to implement a wide range of

measures, besides providing its guidelines for the development of the tourism
sector:

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a. The importance of sustainable development for ensuring the long-term
competitiveness of tourism.

b. The proposal of carrying out a common visa policy to increase the flows of
tourists from non-EU countries.

c. The need for promoting sustainable growth and competitiveness in coastal

and maritime tourism.

d. The launch of a portal to promote Europe as a tourist destination:

https://visiteurope.com/

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 e. A European Tourism Forum (ETF) held annually since 2002 and co-organized
with the country holding the Presidency of the Council of the European Union
during the second half of the year.

➢ Specific measures in the interests of tourists:

a. To make border crossing easier and protect both the health and safety and
the material interests of tourists. For instance:

• Council Recommendation 86/666/EEC on fire safety in hotels.

• Directive 2008/122/EC on timeshare properties.

• Directive (EU) 2015/2302 on package travel and linked travel

arrangements.

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 • Regulations on passenger rights in all areas of transport.

b. The launch of several initiatives in the form of preparatory programmes on

targeted topical issues for European tourism:

• The ‘DiscoverEU’ programme allows 18 year-old Europeans to travel

across the EU and learn more about the diversity of Europe.

• The ‘EDEN’ initiative focuses on promoting European tourist

‘destinations of excellence’, in other words little-known or emerging
destinations that observe sustainability principles.

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• The ‘Calypso’ initiative focuses on social tourism for senior citizens,
underprivileged young people, disadvantaged families and persons with
reduced mobility.

The programme enabled the co-financing of several transnational

partnerships aimed at creating social tourism cooperation and exchange
mechanisms.

• The ‘Sustainable Tourism’ programme includes the ‘Green Belt’ (6 800

km of paths from the Barents Sea to the Black Sea), the aim of which is
to promote the transformation of the former Iron Curtain into a cross-
border network of walking and cycle paths.

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➢ Specific measures in the interests of the tourist industry and the regions, and for
responsible tourism:

a. EU supports the creation of networks between the main European tourist

regions. For instance:

• In July 2009, NECSTouR, an open network of European tourist regions, was

established to serve as a platform for exchanges of knowledge and
innovative solutions in the area of competitive and sustainable tourism.

b. The EU offers a range of funding sources to help tourism contribute to regional

development and employment. For instance:

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 • The European Regional Development Fund for sustainable projects linked
to tourism.
• The Cohesion Fund for environmental and transport infrastructure.
• The European Social Fund for employment.
• The Leonardo da Vinci Programme for professional training.
• The European Agricultural Fund for Rural Development for the
diversification of the rural economy.

c. In October 2022, the Commission launched the EU tourism dashboard, a tool to

assist regional and national policy makers in directing policies and strategies in
the tourist sector by increasing the accessibility of tourism statistics, and aiding
destinations and public agencies in monitoring their progress in the green and
digital transitions.

See at http://tourism-dashboard.ec.europa.eu

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d. Under the terms of Directive 2011/93/EU of 13 December 2011, child sex
tourism is a criminal offence throughout the EU.

Article 21 of the directive makes provision for national measures to prevent or

prohibit the organization of travel for the purpose of committing this type of
offence.

e. Measures in the context of the COVID-19 outbreak:

The EU Digital COVID Certificate was accepted in all Member States, helping to
ensure the right to freedom of movement for all EU residents.

f. In February 2022, the Commission adopted its plan entitled ‘Transition

Pathway for Tourism’.

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 This updated EU industrial strategy stressed the need to strengthen the
tourism sector’s resilience and accelerate the digital and green transitions in
the light of the COVID-19 pandemic.

g. In response to this plan, the Council adopted the ‘EU agenda for tourism 2030’
in December 2022. The agenda focuses on five priorities, with several actions
included under each priority:

• Enabling policy framework and governance.

• Green transition.
• Digital transition.
• Resilience and inclusion.
• Skills and support for transition

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- It is interesting to take a look to “Multi-annual EU Work Plan of the
European Agenda for Tourism 2030”.

That Plan describes voluntary concrete actions for the Member States,
relevant public authorities, the Commission, and other stakeholders in the
tourism ecosystem to take and encourage, in accordance with the
principle of subsidiarity and within the remit of their competences.

See https://data.consilium.europa.eu/doc/document/ST-15441-2022-
INIT/en/pdf

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