03EU Law Article 352 TFEU Quiz

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Questions and Answers

What is the primary function of the flexibility clause under Article 352 TFEU?

To allow the Union to act when no powers are provided in the Treaties (correct)

To regulate specific areas independently of member states

To harmonize national laws across member states

To amend the Treaties without following the revision procedures

Which of the following areas has the flexibility clause been applied to?

Consumer protection (correct)

Financial regulation

Military cooperation

Criminal law enforcement

Which statement correctly describes the outcomes of actions taken under Article 352 TFEU?

They require a simple majority for adoption

They can lead to the harmonization of national rules

They cannot lead to implicit amendments of the Treaties (correct)

They always result in amendments to the Treaties

What is required for the Council to adopt provisions under the flexibility clause?

Unanimous agreement and consent from the European Parliament Signup and view all the answers

What type of legal basis does Article 352 TFEU provide for the creation of agencies?

Material legal basis Signup and view all the answers

What is the theory of implicit powers primarily designed to allow the EU to do?

Exercise powers that are indispensable for effective competences Signup and view all the answers

Which principle must always apply when the EU exercises its competences?

Principle of proportionality Signup and view all the answers

In which case was the concept of parallelism of external competences developed?

AETR case Signup and view all the answers

Which two principles govern the division of competence between the Union and Member States?

Principle of subsidiarity and principle of proportionality Signup and view all the answers

When does the principle of subsidiarity apply according to the TFEU?

In matters that are not exclusively attributed to the Union Signup and view all the answers

What does the principle of proportionality require regarding EU action?

It must be limited to what is necessary to achieve Treaty objectives. Signup and view all the answers

Which Treaty first mentioned the principle of subsidiarity?

Single European Act Signup and view all the answers

What is a practical consequence of the principle of proportionality?

Ensures EU actions respect national legal orders. Signup and view all the answers

What determines the choice of legal basis for an act in the EU?

The subject matter and purpose of the act Signup and view all the answers

What principle is used to determine which legal basis to prefer when multiple options exist?

Centre of gravity theory Signup and view all the answers

Which of the following regulations was developed under Article 81 TFEU related to judicial cooperation?

Bruxelles I Regulation Signup and view all the answers

What can result from a wrongly identified legal basis for an EU act?

Judicial annulment of the act Signup and view all the answers

Which legal basis is NOT applicable in the context of Directive No. 2014/104/EU about antitrust damages?

Article 117 TFEU Signup and view all the answers

What is a consequence of the Centre of gravity theory in the selection of legal bases?

Legal basis closest to the act's purpose is favored Signup and view all the answers

Which of the following represents a type of obligation regulated under the Rome I Regulation?

Contractual obligations Signup and view all the answers

What is the role of the Court of Justice in the context of selected legal bases?

To review and potentially annul acts based on legal basis errors Signup and view all the answers

What is the nature of the list of exclusive competences provided by Article 3 TFEU?

It is exhaustive and cannot be increased by law. Signup and view all the answers

What does exclusive competence imply about the authority of Member States?

Member States may only intervene if authorized by the EU. Signup and view all the answers

Which principle requires a revision of the Treaties to confer new competences to the EU?

The principle of conferral Signup and view all the answers

How was the classification of competences altered by the Lisbon Treaty?

It introduced a specific list for categorizing competences. Signup and view all the answers

What can Member States do in fields designated as exclusive competences under Article 3 TFEU?

Only act if specifically authorized by the Union. Signup and view all the answers

What differentiates exclusive competences from shared competences?

Only the EU can act in areas of exclusive competences. Signup and view all the answers

Why was the previous regime of competence classification considered less effective?

It lacked a list of specific matters for competencies. Signup and view all the answers

What is a key characteristic of the division of competences between the EU and Member States?

It is strictly interpreted, particularly in exclusive matters. Signup and view all the answers

What is a characteristic of exclusive competence belonging to the Union?

Only the EU can regulate matters in areas defined by exclusive competence. Signup and view all the answers

What does 'shared-by-design' refer to in terms of shared competences?

It categorizes shared competences as the most numerous by default. Signup and view all the answers

Under the principle of pre-emption related to shared competences, when can Member States intervene?

Only if the Union has not yet regulated that matter. Signup and view all the answers

Why is shared competence considered a 'catch-all' category?

It encompasses all matters unless specified as exclusive or supportive. Signup and view all the answers

What happens to the Member States' competence in shared matters under the pre-emption principle?

It is eroded gradually in favor of the Union's competences. Signup and view all the answers

Which of the following statements is TRUE regarding Article 4 TFEU?

It provides examples of competences shared between the EU and Member States. Signup and view all the answers

What is one possible effect of the principle of pre-emption on remaining shared competences?

Certain shared competences are defined as 'parallel'. Signup and view all the answers

What does shared competence imply regarding the regulatory powers of both the EU and the Member States?

Both can regulate unless the EU has already done so. Signup and view all the answers

What is the primary function of a directive compared to a regulation in EU secondary legislation?

To harmonize legislation while being more proportional Signup and view all the answers

Who is primarily bound by the principle of subsidiarity during the legislative procedure within the EU?

The Commission and Union institutions Signup and view all the answers

Who benefits from the application of the principle of subsidiarity?

The Member States protecting their sovereignty Signup and view all the answers

What does Protocol 2 to the Lisbon Treaty facilitate concerning the principles of subsidiarity and proportionality?

It enables ex ante political control of legislative acts. Signup and view all the answers

What can be invoked before the Court of Justice if there is non-compliance with the principle of proportionality?

Annulment or declaration of invalidity of secondary law acts Signup and view all the answers

Which of the following describes an inherent feature of regulations compared to directives?

They have direct applicability and replace national legislation. Signup and view all the answers

What is the primary role of the Commission regarding legislative initiatives under the principle of subsidiarity?

To consult broadly before exercising its legislative powers Signup and view all the answers

Which article of the TFEU provides the basis for the annulment of acts of secondary law due to non-compliance with subsidiarity?

Article 263 TFEU Signup and view all the answers

Study Notes

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.

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Test your knowledge on the flexibility clause under Article 352 TFEU. This quiz covers its functions, applications, and the principles guiding EU competence. See how well you understand the legal nuances involved in these important EU frameworks.