Insularity and Law: Diversity and Changeability of Islands’ Statuses—The Example of French Outermost Regions in French and EU Law Systems

Abstract

This article deals with the interactions between national and European legal corpuses about insular territories. French outermost regions (ORs) were first called “départements d’outre-mer” (overseas departments) at the dawn of the French Fourth Republic; they are distinct from other overseas entities. This denomination is used again in the initial EEC treaty in which French overseas departments and overseas countries and territories (OCTs) are distinct. Together with Spanish and Portuguese outermost regions, French overseas departments manage to change EU law in favour of ORs even if the legal differentiation has limits. Moreover, some recent amendments to the French Constitution allow for status variations and even mutations, which can also be found nowadays in EU law.

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At first glance, a legal overview on the case of the islands may seem simple; however, the subject may be more complicated. In this article we deal with islands that are located far from mainland Europe and near other continents, and therefore far from their respective main decision-making centres.

The United Nations Convention on the Law of the Sea provides a definition of islands: “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.”¹ This sentence seems pretty banal,² but French and European Union legal texts do not see the need to define the concept of “island” in itself.

Furthermore, the term under scrutiny and its variants—like “insularity” or “insular”—are not used very frequently.³ In French and European Union (EU) law, these words are rarely employed in the highest legal texts defining the statuses of insular entities.

One example of this scarce use of the word “island” in the French Constitution is its introduction with the 2003 revision concerning the Wallis and Futuna Islands,⁴ which are expressly named as such within the text.

Comparatively, the EU Treaties use twenty times the word “islandˮ and its variants. However, the word is employed fifteen times just to refer to the official names of insular entities which have special statuses under EU law, and therefore to define the scope of its territorial application. In this situation, several islands do not immediately appear as such. For example, the Canary Islands are named as such, but denomination such as the Azores or Guadeloupe do not reveal their archipelagic specificity; or, the Cayman Islands and the Falkland Islands are named as such but other names like Saint-Pierre-and-Miquelon (and many others) do not show that they are islands.

Moreover, the TFEU mentions “insular regions”—among other regions⁵—when it comes to outlining EU public policies like trans-European networks and economic, social, and territorial cohesion.⁶

As infrequent as they are, these examples show how the framers of these legal texts were interested in the cases of numerous insular territories; however, they especially aimed to highlight difficulties of these territories rather than to show their advantages. As noticed as regards Article 349 TFEU about the outermost regions (ORs), the use of the word “insularity” holds that assumption: the word under scrutiny marks a factor exacerbating their “structural, social, and economic situation,” and justifies special legal provisions.

Now, the legal principle of equality tends to incite a different approach for situations that are objectively different. From the get-go we can see that taking insularity, as an unbiased characteristic, into account can be a bed for legal diversification, even if it is far from the only one. It is even truer for overseas islands where the past and the way people feel about it also play a part in explaining, as seen further down.

The Union and French legal orders refer to outermost entities⁷ with a broad diversity of clauses suitable to a specific time; and legal variability adds on to that thanks to revisions of the highest legal norms of both legal systems.

It is even the same for the most integrated overseas territories in French and EU legal systems,⁸ those whose statuses provide for the European and French rules that apply on principle, which in French is called “droit commun”—not the same as Common Law –.

At first, the French Fourth Republic recognised the “départements d’outre-mer” (overseas departments),⁹ and EEC initial treaty (text of 1957) called them “départements français d’outre-mer” (French overseas departments); they would later be followed by other outermost regions, according to EU terminology.

From their beginning, both of these legal systems recognise the diversity of the overseas.

Diversity at the Root of Overseas Entities’ Statuses

The current EU legal regime of the ORs¹⁰ results from how the EEC Treaty of 1957 defined the “French overseas departments” status. This definition, taken from initial Art. 227(2),¹¹ refers to French domestic law;¹² but the 1946 French Constitution did not list them. This list was in the March 19th, 1946 law, known as law of “départementalisation”¹³; at the time there were four overseas departments. Among them, three were insular—Guadeloupe, Martinique in the Caribbean, and La Réunion in the Indian Ocean—, and one was continental—French Guiana in the north of South America. They were (and still are) all very far from mainland Europe, from an eight-hours flight for the Caribbean to an eleven-hours flight for La Réunion.

These four entities were not the only French overseas entities first defined by the French Fourth Republic law, then by the nascent EEC law.

After World War II, France governed colonies mostly located in Africa but also in the Pacific as an example. It was then decided that these four “vieilles colonies”, owned since the seventeenth century, would get a legal status closer to that of mainland France than to the status of territories conquered more recently. After age-old demands for equality—some even spoke about “assimilation”¹⁴—, the new legal system of these “quatre vieilles”—i.e. French Guiana, Guadeloupe, Martinique and La Réunion—was defined by the principle of “legislative identity”: law voted in France automatically applied—which means without any special thought—, but the French Parliament could “adapt” them to the local circumstances of these new overseas departments. By contrast, colonies known as “territoires d’outre-mer” (overseas territories)¹⁵ benefitted from the principle known as “the legislative speciality rule”: a priori, mainland law did not apply there except when specifically prescribed. This was laid down in Arts 73 and 74 of the Constitution of the Fourth Republic (October 27, 1946), and subsequently in Arts 73 and 74 of the Constitution of the Fifth Republic (October 4, 1958).

It appears that geography, meaning insularity and distance in the most restraining way, was not as important as history (and social expectations) when defining the political choices of the Constituent Assembly elected in 1945.

At the end of the French Fourth Republic, French negotiators for the Treaty of Rome obtained that the four overseas departments be treated differently than the overseas countries of Belgium, Italy, the Netherlands, and other French overseas territories. These overseas entities were listed in the “overseas countries and territories” (OCTs) list annexed to the treaty of Rome; their legal status was qualified as “special arrangements for association”¹⁶ to the EEC, and the Court of Justice of the European Communities (CJEC) will insist that the OCTs are outside of the territorial scope of the treaty.¹⁷

It should be noted that the original stipulations concerning the French overseas departments regarded Algeria, which fell out of the purview of French and EEC law in 1962 following its independence.

Without going into details on the complexity and at times incongruous nature of the clauses concerning French overseas departments,¹⁸ we see that the CJEC did not interpret them until 1978. Going against the opinion given before by the EEC Council, composed of Member States’ ministers, the CJEC declared that the application of EEC law to French overseas departments had not been selective; on the contrary, the totality of common EEC law applied to them; this is what jurists call the principle of integration. However, to take into account their different situations, “in addition it [the treaty] made available the widest powers for the adoption of special provisions commensurate to the specific requirements of those parts of the French territories.”¹⁹

The wording is nonetheless misleading. At those times it seemed, especially to overseas representatives, that differentiation was possible for EEC law as the whole as long as the correct procedure—the Council ruling unanimously²⁰—was followed. In fact, even if the EEC Treaty forbade without exception the use of “charges having equivalent effect” to custom duties, it would be legitimate to exempt the French overseas departments where since the seventeenth century a tax called “octroi de mer” (or dock dues) existed. It only applied to goods imported in the French overseas departments, not for local goods.

In the 1990s, furthermore, the CJEC specified that such exemption was forbidden.²¹ This was anticipated in the French and EU law concerning the dock dues.²² A similar tax from the Canary Islands called the “arbitrio” had to be also amended to comply with the full EEC law in the Canary Islands after Spain joined the EEC.²³ This also weakened other discriminatory taxes created to help ORs’ local production, for example alcohols taxation (like rum from French overseas departments or other alcohols from Madeira and the Azores).²⁴

There are in primary law—or Treaty law—legal norms which are so precise and unreserved that not even the Council or Member States can infringe or circumvent them. However, when primary law allows for the freedom to adopt secondary law relative to time and space, then what is possible in EEC mainland Europe is also possible in French overseas departments. As an example, one can refer to the EEC Treaty about agriculture and fisheries²⁵: primary law deals with goals to reach and proper procedure to follow while its implementation—i.e. secondary law—vary from time period, to regions, to goods.

The limits to the ability of EU actors (Institutions, Member States, and territorial communities) to divert from primary law for the benefit of ORs become more understandable for overseas people and they try at the beginning of the 1990s to remove these limits to evolve their statuses.

The Revision of ORs’ Status in EU Law: Increased Legal Distinction While Still Within Boundaries

The beginning of the 1990s marked the start of a new wave of European primary law revisions, and ORs’ representatives took note of the new opportunities created by these reviews.

However, towards the end of the negotiations leading to the Maastricht Treaty of 1992, the presidents of the seven ORs—the four French regions, the Canary Islands, the Azores and Madeira—only obtained a declaration number 26 attached to the treaty²⁶ that recognised their distinctive characteristics. This left unchanging clauses in the primary law and thus the impossibility to amend or change them through the legislative way to help ORs.

There was, in the Maastricht treaty, a rendez-vous clause, which organised a meeting for reviewing the treaties in 1996;²⁷ with this in mind, the presidents of the seven ORs reinforced their common stand to obtain the removal of what they saw as an impediment. The subject was not to leave the EC but to allow adapted derogations to those obstructing clauses.

Their efforts bore fruit with the modification of the initial article about the French overseas departments which became Art. 299(2) TEC derived from Amsterdam treaty signed in 1997.²⁸ This new modification also concerns the Azores, Madeira and the Canary Islands. Most of it is reused with minor changes in the Lisbon treaty, signed in 2007;²⁹ interestingly, Art. 349 TFEU names each French entity instead of referring to them by their French legal status.³⁰

Since the Amsterdam treaty the EC/EU Council has leave to take into account ORs’ “structural, social and economic situation”, their “characteristics and constraints”, as well as the compounding factors “which severely restrain their development”. It is a simple procedure: a proposal by the Commission is followed by the opinion of the European Parliament; then, a Council ruling with qualified majority (instead of the previous unanimity). The way is open for further legal differentiation.

However, the corresponding article ends with the warning that “undermining the integrity and the coherence of the [EC/UE] legal order” is not permitted.³¹ This enigmatic sentence shows that some differentiations are allowed but do not specify which ones.

As long as these differentiations are about, as before, the creation of secondary law that do not undermine primary law,³² there is no contradiction with the common legal order. The European Institutions can adopt dispositions specific to ORs in general or to some of them, or create the possibility to modify already existing secondary law. This is the modulation technique: a piece of secondary law modifying the purview of another piece of secondary law of the same level,³³ without infringement of the hierarchy of legal norms.

But when implementing the ORs specific clause, the Council infringes on other clauses of primary law, like when allowing discriminatory taxes, the Council is not totally free. 1998 CJEC rulings about the dock dues³⁴ make clear that the accepted derogation must not be unreasonable. It must be limited in time: no permanent derogation is allowed. It must be limited in scope: local authorities in charge of applying the exception must have limited purview and the difference with common norms must stay minimal. The Council must also provide for a monitoring procedure, usually overseen by the Commission.

In short, the guiding rules for Council approved exceptions go towards preserving the possibility of a return to “orthodox” legal order. This way the principle of legal integration is retained even if differentiation is admitted under conditions.

Modifications to French Constitutional law can be added to EU law evolving with amendments to primary law concerning the ORs; those modifications allow for highlighting the diversity of statuses among French overseas regions.

Revision of Article 73 of the French Constitution: Heightening of Status Diversity

Since 2003, Art. 73 of the French Constitution uses the terms “characteristics and constraints”³⁵ from EC law as revised by the Amsterdam Treaty concerning overseas regions. This allows for “adaptations” to law and regulations.

At the same time, the collectivities in question can receive from Parliament or Central Government the purview to create those adaptations;³⁶ most of them have the ability to adopt their own regulations but only on a limited scope and “to take into account their specificities”.³⁷ Contrary to French Guiana, Guadeloupe, Martinique, Mayotte and Saint-Martin, La Réunion does not have this possibility.³⁸ This shows the diversity in statuses laid down in Art. 73 of the Constitution.

Regarding changeability, the 2003 constitutional amendments opened the door for a status modification allowing the change from department and region in the same geographical location to a single territorial community,³⁹ which happened in French Guiana and Martinique after a 2011 law.⁴⁰ It could only happen after a constitutional revision, as in 1982 the Constitutional Council had censored a similar law, for the only adaptations allowed were “those necessary because of the special situation of the overseas departments” and the proposed piece of law went beyond what was allowed by the Constitution of the time.⁴¹

Nowadays, the French constitutional revisions of 2003 and 2008 allow, through the legislative path, for status changes of overseas entities. At the EU level, the Treaty of Lisbon signed in 2007 allows the European Council to similarly change their European statuses. They create a more complex patchwork of French and European overseas statuses.

Mutability of Statuses and Increasing Complexity

On the French side of things, the 2003 constitutional amendments allow an “Institutional Act”, passed by Parliament, to alter the status of overseas communities.⁴²

Two island municipalities of the archipelago of Guadeloupe—Saint-Barthélemy and Saint-Martin—became in 2007 their own communities and therefore separated from the rest of Guadeloupe. Moreover, instead of still being classified under the scope of Art. 73 of the Constitution, they became “collectivités d’outre-mer” (overseas collectivities)⁴³ under Art. 74—like French Polynesia or Wallis and Futuna Islands.

However, when the Treaty of Lisbon was elaborated, it kept for those two islands the European status of OR and the signed text of the 2007 Treaty named them among the entities under the purview of the then new Art. 349 TFEU.⁴⁴ Now, most of the French regions that used to be overseas departments, under article 73 of the Constitution and the principle of legislative identity—adaptation notwithstanding—are also ORs and are thus integrated into EU legal system. But the two French ORs of Saint-Barthélemy and Saint-Martin are not under the purview of article 73 of the Constitution and are “collectivités d’outre-mer” or overseas collectivities under article 74.

From the EU perspective, the Treaty of Lisbon also provides for the need of EU overseas entities to change their EU-law status; Art. 355 (6) TFEU sets forth the procedure, which is applicable, among others, to French overseas entities.⁴⁵

As soon as they separated from Guadeloupe, the authorities of Saint-Barthélemy asked to change status from OR to OCT. After following the correct process, the change was accepted by the European Council in 2010,⁴⁶ and became effective in 2012. Consequently, Saint-Barthélemy holds simultaneously the French status of overseas collectivity (under Art. 74 of the French Constitution) and the EU status of OCT, like French Polynesia or Saint-Pierre-et-Miquelon. Saint-Martin remains the sole example of being both overseas collectivity (under Art. 74 of the French Constitution) and OR (under Art. 349 TFEU).⁴⁷

However, the authorities of Mayotte chose the reverse path when compared to Saint-Barthélemy. Mayotte fell under the scope of Art. 74 of the French Constitution before the revision of 2003; and, as such, it had a status close to the overseas territories’ one at that time. It was also on the EU OCTs list. Looking for a legal status as close as possible to the French “droit commun” and to EU law, Mayotte’s representatives first obtain the overseas department status under French law⁴⁸ before becoming OR after a European Council ruling of 2012, and effective in 2014.⁴⁹

To this day, the only applications of Art. 355 (6) TFEU were to change an OR into an OCT, and an OCT into an OR. However, this article does not oversee only this permutation⁵⁰; it textually deals with “a decision amending the status, with regard to the Union” which offers a broader playground for legal imagination. Case-by-case solutions can be created for the overseas entities of France and the EU, that would heighten further the diversity of legal categories established and would show how changeable the status of each entity might be over time.

It is however doubtful whether the EU would increase the diversity of statuses since it is already complex. For the time being we know that, without changing primary law, it is possible to plan special measures for one of the ORs while they are not used for the others. This adaptability of secondary law can be seen in the case of Mayotte: a few days before its OR status came into force the EU Council allowed for modulation of large parts of EU law in such fields as fishing, environment, or social security.⁵¹ The CJEU acknowledges the validity of different contents or delays in time decided by the EU Council provided the “structural, social, and economic situation” can differ from OR to OR.⁵²

The terms of law diversity and changeability characterise the statuses of insular overseas entities. More than geographical reasons, there are also the weight of the past⁵³ and the hope for a better future.

However regional differentiation is not specific to the overseas entities.

There are other examples of specificities under EU law like the impossibility for some EU citizens to use some legal rights in specific parts of the EU, such as the right to vote in local elections in the Åland Islands; it is restricted to those who have thehembygdsrätt/kotiseutuoikeus (regional citizenship). There is also the exemption from the principle of equality between men and women in the Mount Athos peninsula. Those are exceptions to EU law recognised in primary law⁵⁴ that are not used in EU overseas regions.

Appendices

Appendix 1: Changeability of French Overseas Statuses, after the Lisbon Treaty (EU Law)

Initial version (came into force on December 1999)		Implementations of Art. 355 (6) TFUE
ORs	OCTs
French Guiana	New Caledonia and Dependencies	2012 Saint-Barthélemy became an OCT [2010/718/EU: European Council Decision]
Guadeloupe	French Polynesia
Martinique	French Southern and Antarctic Territories
La Réunion	Wallis and Futuna Islands
Saint-Barthélemy	Saint Pierre-et Miquelon
Saint-Martin	Mayotte
		2014 Mayotte became an OR [2012/419/EU: European Council Decision]

Appendix 2: Classification of the French Overseas entities in current French and EU Law

Legal integration		Legal non-integration
French Law Art 73 of the French Constitution	UE Law: Outermost Regions (ORs) Arts 349 and 355 (1) of TFUE	French Law Art 74 of the French Constitution	UE Law: Overseas Countries and territories (OCTs) Art. 355 (2) and Annex II of TFUE
French Guiana (Territorial Community since 2015*)a Guadeloupe (Region and Department) Martinique (Territorial Community since 2015*)b La Réunion (Region and Department) Mayotte (Department since 2011*)c	(Among others)d French Guiana Guadeloupe Martinique La Réunion Saint-Martin Mayotte (since 2014)e	(Among others French Overseas Entities)f Saint-Martin (Collectivity since 2007*)g Saint-Barthélemy (Collectivity since 2007*)h	(Among others)i New Caledonia and Dependencies French Polynesia French Southern and Antarctic Territories Wallis and Futuna Islands Saint-Pierre-et Miquelon Saint-Barthélemy (since 2012)j

1. *I.e. after the election of the corresponding ruling bodies.
2. ^aSee Loi n° 2011–884 du 27 juillet 2011 quoted previously.
3. ^bSee Loi n° 2011–884 du 27 juillet 2011 quoted previously.
4. ^cSee Loi organique n° 2010–1486 and Loi n° 2010–1487 quoted previously.
5. ^dOutermost entities of Spain and Portugal: the Canaries Islands, the Azores, Madeira.
6. ^eSee 2012/419/EU: European Council Decision quoted previously.
7. ^fI.e. French Polynesia, Wallis and Futuna Islands, Saint-Pierre-et Miquelon. NB New Caledonia and Dependencies are not under Art. 74, but under Arts. 76 and 77, in a different “Title XIII—Transitional provisions pertaining to New Caledonia”. Other French entities are not seen like “Territorial communities”, but “Special-Status communities», as they have neither permanent population nor elected councils: French Southern and Antarctic Territories, Clipperton. See Arts. 72 ff of the French Constitution.
8. ^gSee Loi organique n° 2007–223 and Loi n° 2007–224 du 21 février 2007 quoted previously.
9. ^hSee Loi organique n° 2007–223 and Loi n° 2007–224 du 21 février 2007 quoted previously.
10. ⁱOverseas entities of Denmark and the Netherlands (and the United Kingdom before Brexit).
11. ^jSee 2010/718/EU: European Council Decision quoted previously.