3 - EU Competences - Lecture notes 3 PDF

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week 3 lecture notes - EU Competences...

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M9212 EU Law

2020-21

WEEK 3: EU COMPETENCES

1. THE PRINCIPLE OF CONFERRAL: The principle of conferral underpins the existence and exercise of EU competences. Before the entry into force of the Lisbon Treaty, the principle of conferral was enshrined in Article 5 TEC. This principle was then known as the principle of legality of Community action. Article 5 TEC read: ‘The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it thereto (…).’ With the entry into force of the Lisbon Treaty, the principle of conferral is now enshrined in Article 5 TEU; it reads: 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 2. Under 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.

The principle of conferral means that the EU has no general competence or inherent competence. Thus, to have competences, the EU must have been given these competences by the Member States. The EU must act within the limits of its competences. It remains the case that the delineation of EU competences has been problematic at times. This is one of the issues that the Lisbon Treaty has sought to address (I will come back to this point). => The ‘competence creep’ debate: the then EC was accused of not always respecting the division of competences between the EU and the Member States. The Court of Justice was criticised for not policing and enforcing this division satisfactorily. Case C-57/89 Commission v Germany (‘Tobacco Advertising’) => In this case, the Court of Justice, for the first time, annulled a directive because the EU lacked the necessary 1

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competence to adopt it. The Directive in question was ‘packaged’ as an internal market measure as this gave the EU competence to adopt the Directive. However, the Court found that the link with the internal market was far too tenuous and held that the Directive was clearly a public health measure. Since the EU had no competence to harmonise legislation in the area of public health, the Directive was annulled for lack of competence.

Brunner v European Union 89 BVerfGE [1994] 1 CMLR => This is a judgment of the German Constitutional Court. Germany’s ratification of the TEU was challenged in the German Constitutional Court on the ground that it conflicted with the German Constitution (the ‘Basic Law’). The German Court held that ratification did not conflict with the Constitution. However, the Court took this opportunity to send a ‘warning’ to the EU => If the EU were to act ultra vires – i.e. beyond its competences –, the German Court would not apply the principle of supremacy. According to this principle, in case of conflict between EU law and national law, EU law prevails over national law. The German Court held that ultra vires EU law would not prevail over conflicting national law. (There will be a lecture on the principle of supremacy).

2. THE DIFFERENT TYPES OF EU COMPETENCES: Prior to the entry into force of the Lisbon Treaty, there were two types of EC competences: 1. The EU exclusive competences; and 2. The EC shared competences (shared between the EC and the MS). The TEC, however, did not clearly list the EUC competences. Exclusive competences: involve a complete transfer of competence from the Member States to the EU. The legislative process is totally entrusted with the EU institutions (and in particular with the Council and the European Parliament). Because of the impact of exclusive competence on national sovereignty, only a small number of areas fall within the EU exclusive competences (e.g. Customs Union). Shared competences: Most EU competences are shared with the Member States. The exercise of shared competences is underpinned by the doctrine of minimum harmonisation. Minimum harmonisation allows the Member States to take measures that 2

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are more stringent or more protective than EU measures. This doctrine was developed in order to prevent more protective national regimes from being undermined by EU lower standards (e.g. in the field of consumer protection). The Lisbon Treaty introduces a third category of competences: Supporting, coordinating or supplementing competences  Now there are three types of EU competences – Article 2TFEU: 

Exclusive competences;

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Shared competences: and

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Supporting, coordinating or supplementing competences: Areas where the Member States have exclusive competence but in which the EU can provide support or co-ordination (excluding harmonisation) with respect of the European aspects of these areas (Article 6 TEFU).

With the entry into force of the Lisbon Treaty), the EU competences are for the first time listed in a Treaty, the TFEU.  The Union’s exclusive competence (Article 3 TFEU) -

Customs Union;

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Establishment of competition rules necessary for the functioning of the internal market;

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Monetary policy for Member States which use the euro as legal tender;

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Conservation of the biological resources of the sea as part of the common fisheries policy;

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Common trading policy; and

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The conclusion of an international agreement when this is within the framework of one of the Union’s legislative acts or when it is necessary to help it exercise an internal competence or if there is a possibility of the common rules being affected or of their range being changed.

The Lisbon Treaty did not grant new exclusive competence to the Union.

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 Shared competences between the Union and the Member States (Article 4(2) TFEU): -

Internal market;

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Social policy with regard to specific aspects defined in the Treaty;

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Economic, Social and territorial cohesion;

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Agriculture and fisheries except for the conservation of the biological resources of the sea;

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Environment;

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Consumer protection;

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Transport;

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Transeuropean networks;

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Energy (new shared competence);

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Area of freedom, security and justice;

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Joint security issues with regard to aspects of public health as defined in the Lisbon Treaty;

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Research, technological development and space (space is a new shared competence); and

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Development cooperation and humanitarian aid.

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Supporting, coordinating or supplementing competences

 Supporting, coordinating or supplementing competences

2.3.

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Protection and improvement of human health care;

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Industry;

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Culture;

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Tourism;

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Education, professional training, youth and sport;

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Civil protection; and

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Administrative co-operation.

The principle of subsidiarity

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The principle of subsidiarity was inserted as a general principle in the TEC by the TEU. However, the idea of subsidiarity goes back to the mid-1970s. Pressure to incorporate subsidiarity into the Treaty increased as the body of EC legislation increased. So what is subsidiarity? Subsidiarity relates to how the EU should use its competences. Article 5(2) TEC, inserted by the TEU (prior to the entry into force of the Lisbon Treaty), read: ‘In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved by the Community.’ With the entry into force of the Lisbon Treaty, the principle is now enshrined in Article 5 TEU.

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The principle of subsidiarity only applies to shared competences.

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Two tests must be satisfied for subsidiarity to apply and for the EU to exercise its shared competence: -

‘The objectives of the proposed action cannot be sufficiently achieved

by the Member States’; and -

The proposed action can be better achieved by EU action: the

comparative efficiency test. It remains the case that the principle of subsidiarity is not an easy one to apply. A Protocol was annexed to the Treaty of Amsterdam with a view to facilitating the application of the principle of subsidiarity (Protocol on Subsidiarity and Proportionality). According to this Protocol, the following guidelines should be used in examining whether the two tests are met: ‘

- the issue under consideration has transnational aspects which cannot be satisfactorily regulated by action by Member States; -

actions by Member States alone or lack of Community [now EU] action would conflict with the requirements of the Treaty (such as the need to correct distortion or competition or avoid disguised restrictions on trade or strengthen

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the economic and social cohesion) or would otherwise significantly damage Member States’ interests; -

action at Community [now EU] level would produce clear benefits by reason of its scale or effects compared with action at the level of the Member States.’

All EU institutions must comply with the principle of subsidiarity and police compliance with it. The CJ has found it difficult to review compliance with the principle of subsidiarity. In the Biotechnology judgment, it seemed that all the institutions had to do to demonstrate compliance with the principle of subsidiarity was to show that the EC had competence in the area concerned (Case C-377/98 Netherlands v European Parliament and Council (‘Biotechnology Directive’)). There are issues of justiciability. A further difficulty arose from the fact that the EU institutions tended to have differing views of the role and purpose of subsidiarity. The Council tended to construe the principle of subsidiarity as a means to limit Community [now EU] legislation whilst the EP saw in the principle a means to legitimise the increase in EC [now EU] legislation. The Commission’s approach may be positioned midway between the position of the Council and that of the EP. The Lisbon Treaty introduced of an ‘early-warning system’ with a view to ensuring that shared competences are exercised in compliance with the principle of subsidiarity (Protocol on the principles of subsidiarity and proportionality annexed to the Lisbon Treaty) 

This mechanism will allow each national parliament to indicate when the principle of subsidiarity is in danger of being breached by the EU institutions.

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Beyond one third (or one quarter in the area of ‘justice and internal affairs’) of negative opinions on the part of national parliaments the commission is under the obligation to review its proposal for EU legislation.

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Each House of each national parliament is given the possibility to turn to the Court of Justice for any breaches of the principle of subsidiarity.

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