Whilst it seems that there a number of things in the other five Papers that might attract qualified support, this is the one in which the author appears to this writer to be most off-track.
In order to analyse this one top-down, we need to take a somewhat turgid but necessary detour into the Constitution of the European Union, and the legal sources of its powers and its competences.
Please bear with this, as I believe that the startling conclusion I reach should be worth the journey.
The European Union
The European Union is notable in that it has, and exercises sovereignty. The sovereignty that it has belongs to the Member States, who agreed to pool their sovereignty in certain areas so as to improve life for all Union Citizens.
The Treaty of Lisbon sets out principles on how sovereign rights are transferred from the nation-state to the Union and guarantees that these principles should not be infringed.
These principles are conferral, subsidiarity and proportionality. Competences that are not conferred upon the Union in the Treaties must remain with the Member States.
Conferral means that the Parliaments of Member States may transfer responsibility from the Member State to the Union when they consider common action is preferable.
Subsidiarity (a concept that should be familiar to many people in the context of ICANN), means that action should not be taken at a higher level (i.e. by the Union) that is more appropriately taken at a lower level (i.e. by the Member States).
Proportionality means that if (and only if) it is agreed by the Member States that action at the Union level is appropriate, then the most appropriate method should be used (for example, there is no need to use legislation where less complicated methods are available).
The Treaty on the Functioning of the EU sets out that the EU has three types of competences: ‘exclusive’, ‘shared‘ and ‘supporting‘ which are set out in Arts 3 to 5 TFEU.
The internal market, for example is a shared competence with the Member States, although competition rules in the internal market is an exclusive competence. (See also Note 1 below).
The supporting competences do not appear to have any relevance to ICANN policy.
Therefore, the conclusion of this first look at Paper 3 is that it appears that it may be the case that :-
1.The operation of Member States’ ccTLDs does not fall within the exclusive competences of the Union unless the mattter relates to competition rules of the internal market.
2. The operation of Member States’ ccTLDs does not fall within the shared competences of the Union unless the matter relates to the internal market or interoperabiltiy of Member States’ national networks with TEN.
3. The operation of Member States’ ccTLDs does not fall within any of the supporting competences.
then
most of what is proposed by the European Union in Paper 3 would appear to be in relation to matters that are reserved to the Member States, and not within Arts 3 to 5 TFEU.
If I am right in this view, Paper 3 should be opposed by Member States for that reason alone. I would welcome comment or contrary argument.
(Part 2 of this look at Paper 3: ccTLDs will look at the content of the paper itself.)
Note 1:
It is interesting to note that “trans-European networks” are also a shared competence.
It seems entire reasonable that issues of technical interoperability and interconnection between national networks are a shared competence, but it seems likely to this author that the creation of national policy for relationships between Member States’ national networks (it seems clear that ccTLDs are not a part of TEN) and non-European networks cannot be either an exclusive or a shared competence.