EU Powers/CompetencesTamara Ćapeta

2015

The Establishment of the EU

Comparable to evolutive federations :

Article 1 TEU: “By this Treaty, the HIGH CONTRACTING

PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’ on which the Member States confer competences to attain objectives they have in common.”

Principle of conferralArticle 5 TEU:

1. “The limits of Union competences are governed by the principle of conferral (…)”

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.”

Limitted powers

Similar to federal states – eg. US – the principle of enumerated powers

Constitutional nature of the principle of conferral: the consequence of the inexistence of power is invalidity of a legal norm adopted by the EU

- Principle of conferral subject to judicial control

Novelty in the Lisbon Treaty

Article 4/1 TEU: “In accordance with Article 5, competences

not conferred upon the Union in the Treaties remain with the Member States.”(repeated in Article 5/2 TEU)

Reasons? Creeping competences (comp. US)

Judicial control of the principle of conferral

Only one decision declaring an EU act void because of the lack of EU competence :Case C-376/98 Tobacco Advertising

Background : Kompetenz-Kompetenz doctrine of the German Bundesverfassungsgericht

Sistematisation of EU Powers

Novelty of the Lisbon Treaty

3 types of EU powers (Article 2 TFEU)• Exclusive• Shared• Complementary

(Additionally: Economic and Employment policies and the CFSP)

Exclusive Powers only the Union may legislate and adopt

legally binding acts, while Member States lost regulatory competence

MS cannot act even if EU has not yet regulated

MS can enact implementing measures if so demanded by the EU act

For the first time exclusive powers are exhaustively enumerated in the Lisbon Treaty

Exclusive PowersArticle 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;(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.

Shared Powers both the Union and the Member States may

legislate and adopt legally binding acts in the area at issue

Pre-emptive competences: once the EU has exercised its competence to regulate in certain area, MS cannot regulate any more

Parallel shared powers: even if EU has regulated certain issue, MS can still regulate

Shared PowersEnumerated by the Lisbon Treaty in exemplary, not-exhaustive way (Article

4 TFEU):

(a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine

biological resources; (e) environment; (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, for the aspects

defined in this Treaty.

Complementary Powers EU has competence to carry out actions to

support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

In these areas, EU cannot harmonise national laws by legally binding acts

Complementary PowersArticle 6 TFEU: (a) protection and improvement of human

health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and

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

The scope and the limits of EU powers

Aims of particular policies, their scope and their limits are described in different provisions scattered throughout the Treaties

Subject to interpretation:• By EU institutions, primarily Commission which

proposes the act, but also the Council and the EP that adopt it

• Interpretation influenced by the position of the Member States sitting in the Council

• Last word in the interpretation of the content and the limits of a power is given to the CJEU

Legal Basis Due to the principle of conferral, each EU act

need to have legal basis in the Treaties (TEU or TFEU)

The lack of the legal basis or wrong legal basis result in the legal invalidity of a measure

Legal basis – Treaty provision which contains certain concrete EU power and determines at the same time the type of procedure in which a measure is to be adopted and the institutions that participate in its enactment

Example No 1Article 114/1 TFEU

Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

Example No 2 Article 113 TFEU:

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.

The choice of a legal basis Subject to judicial review by the CJEU Cases about the right choice of the legal

basis: • Battle for the vertical division of powers: EU – MS

(C-376/98 Tobacco Advertising)• Battle for the powers among the institutions –

determine the inter-institutional balance in the EU (C-176/03 Environmental Penalties);

Subsidiarity and Proportionality

If EU has shared power, it still does not mean that it can regulate specific issue

This depends on the principles of subsidiarity and proportionality

These principles are also of constitutional nature and their violation results in the invalidity of the adopted measure

Subsidiarity and Proportionality

Application of subsidiarity and proportionality regulated by the Protocol

Subject to judicial control

Novelty of the Lisbon Treaty – inclusion of national parliaments in the control of subsidiarity

EU external competences Article 47 TEU :

“The Union shall have legal personality.” EU has legal personality since Lisbon Treaty Untill Lisbon treaty, European Communities

had legal personality Legal personality means, among other, that

EU is legal subject in international relations Principle of conferral applies also in external

relations

Division of powers in external relations

Unlike most federal states, in which external power is exercised by federation, in the EU external power is shared between the EU and its Member States

division of powers between the EU and its Member States is complex and constantly changing

When can EU act in international relations?

Difference ‘ordinary’ external relations and CFSP

Principle of conferral applies to both ‘ordinary’ external relations and the CFSP

International action, including an international treaty signed by the EU must demonstrate legal basis

Procedure for signing, implementation and the legal effect of international agreement within the supranational pillar and the CFSP differ

Express and Implied External Powers

EU can sign an international agreement• When the Treaty expressly grants external powers –

express powers • When the Treaty is silent about the possibility of signing

an international agreement, but there is a power to regulate this area internally– implied powers

Wide EU powers in international relations , based on the doctrine of implied powers, are largely the result of case-law, starting with the case ERTA (1971.)

Exclusive or shared external powers

Exclusive power – means that Member States have lost the power to regulate certain issue on the international level – the EU only can sign an international agreement

Shared power – means that certain issue may be regulated internationally by both, the EU and the Member States

Shared powers become exclusive in certain situations

Exclusive external powers in Lisbon Treaty

Article 3/2 TFEU:

“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.”

Mixed Agreements An agreement which is concluded by both EU and its

Member state at the same side

EU must conclude an agreement together with its Member States if such agreement relates also to issues for which EU lacks competence

EU may conclude an agreement together with its Member States if it has competence in the area which agreement covers, but such competence is shared with its Member States.

EU may sign such agreements without the participation of Member States as parties