03EU Law Article 352 TFEU Quiz

EU Competences

• The EU's powers are defined by the principles of conferral, subsidiarity, and proportionality.
• Conferral: The EU acts only within the powers given to it by the member states in the treaties to achieve the listed objectives.
• Subsidiarity: The EU should only act if the objectives can't be achieved at a lower level (e.g. national or regional).
• Proportionality: EU action must be limited to what is necessary to achieve the objectives set out in the treaties.

Principle of Conferral (Article 5 TEU)

• The scope of EU powers is limited to those expressly conferred by the treaties.
• Competencies not explicitly listed in the treaties remain with the member states.
• National security, territorial integrity, and fundamental structures/political/constitutional identities stay within the sole responsibility of each member state.

Legal Basis

• Each EU action must have a clear legal basis in the treaties.
• The legal basis specifies the treaty provisions that allow the EU institution to act.
• Judicial review by the Court of Justice determines if the appropriate legal basis is used.
• Aspects to consider when choosing a legal basis for actions include subject matter, purpose, and content.

Legal Basis in Treaties

• Judicial cooperation is developed in civil matters with cross-border implications.
• Union shall develop cooperation for the correct functioning of the internal market
• Rules on mutual recognition and enforcement of judgments and decisions, cross-border service of documents, laws on conflict of laws and jurisdiction, cooperation in taking of evidence, and effective access to justice.

Legal Basis in Secondary Law (Regulations)

• Regulations ensure compliance with treaty provisions (e.g. Articles 101 and 102) through fines/penalty payments
• Regulations lay out how Article 101(3) (of the treaty) will apply
• Regulations define the provisions of articles 101 and 102.
• Obligations between the Commission and Court of Justice to apply regulations.

Legal Basis in Secondary Law (Directives)

• Directives give effect to principles in Articles 101 and 102.
• Directives provide detailed rules for application of Article 101(3), simplification of administration, and scope of provisions of Articles 101 and 102
• Directives determine the relations between the Commission and Court of Justice, and relationships between national laws and Union laws for those provisions in the section of the treaties being used.

Different Kinds of Competences (Article 3-6 TFEU)

• Exclusive: EU has sole power to act.
• Shared: EU and member states share power to act.
• Supporting: EU supports or coordinates member states' actions.
• The classification of competences is defined in the Lisbon Treaty to provide a more organized approach

Exclusive Competences (Article 3 TFEU)

• The Union has exclusive competence in customs union, competition rules for the internal market, monetary policy (Eurozone members), conservation of marine biological resources (common fisheries policy), and common commercial policy.
• The Union has the sole power to conclude international agreements when it's part of a legislative measure, necessary for internal competence, or affects existing common rules.

Exclusive Competences (Article 3 TFEU) - further notes

• The list of exclusive competences in Article 3 TFEU is exhaustive.
• It's impossible to establish an exclusive competence without a declaration in Article 3 TFEU.
• There is no room for the expansion of exclusive powers. Member states can only exert authority in their own jurisdiction (in their own area) except when they are specifically given permission to interfere within the area of other member states jurisdiction by agreement by way of amendment to the treaties.

Shared Competences (Article 4 TFEU)

• Shared competences involve the EU and member states in the internal market, social policy (where defined in the treaty), economic, and social cohesion, agriculture and fisheries (excluding marine resources), environment, consumer protection, transport, area of freedom, security, and justice, trans-European networks, and common concerns in public health matters.
• The list is not exhaustive; it acts as an example

Shared Competences (Article 4 TFEU) - further notes

• "Shared by Design" = Shared competences where the treaty doesn't explicitly say it's the EU's sole power to legislate, it's assumed that powers to act in the said areas/matters are shared.
• The principle of pre-emption can erode the capacity for member states to act in shared matters, as the EU gains more power by way of subsequent regulation/legislation.

Supporting Competences (Articles 5 and 6 TFEU)

• The EU supports or coordinates member states' actions in areas like health, industry, culture, tourism, education, vocational training, youth, sport, and administrative cooperation.
• The areas in this set of competences are exhaustive.

Rigidity vs. Flexibility

• Flexibility clause (Article 352 TFEU) allows the EU to act if deemed strictly necessary to achieve objectives not addressed/not covered in previous treaties.
• The flexibility clause can’t implicitly amend or change the treaties in a way that would be considered a treaty amendment via any other route, including new amendments.
• Theory of implicit powers allows the EU to exercise powers not explicitly mentioned in the treaties if they are necessary for the effective exercise of conferred competencies. This principle developed from case-law decisions.

Principles Governing the Exercise of EU Powers

• The Treaties do not address the issue of how EU powers were to be exercised.
• The principle of subsidiarity is concerned with when the actions of the EU are justified, particularly in matters of limited competence.
• The principle of proportionality ensures that the EU's action is limited to what is necessary to achieve the objectives, and that it doesn't exceed its limits.

Principle of Proportionality

• EU action must be limited to the objectives of the treaty.
• The interference of EU action within member states should be limited (less invasive as possible) to avoid undue interference and to retain the autonomy of national/member state legal systems.
• The Court of Justice can use judicial review of legislation based on the principles of proportionality.
• A specific type of regulation (a directive as opposed to a regulation) is inherently more proportional due to the way it regulates national action, as opposed to using a regulation, in most (shared competence) cases.

Principle of Subsidiarity

• The EU should only act if the member states cannot sufficiently achieve the objectives on their own.
• The principle concerns the scale and effects of the proposed action.
• The principle of subsidiarity protects the sovereignty of member states in matters where they have competence.

Protocol 2 to the Lisbon Treaty

• Protocol 2 outlines the application of subsidiarity and proportionality principles.
• National parliaments have a role in reviewing EU legislative proposals before they become law.
• The Commission must provide reasoning for each legislative proposal.