EU Competences PDF

The EU competences. The principles of conferral, subsidiarity and proportionality EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0 The principle of conferral (Article 5 TEU)...

The EU competences. The principles of conferral, subsidiarity and proportionality EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0 The principle of conferral (Article 5 TEU) 1  The principle of conferral (Article 5 TEU)  The Union shall exercise its competences in accordance with the principle of conferral, which means exclusively:  within the limits of the competences expressly conferred upon it by the Treaties;  in order to achieve the objectives set out in the Treaties  in compliance with the principles laid down in the Treaties  Any competence which is not attributed to the Union remains vested in the Member States (Article 4 TEU, where it is also redundantly specified that national security is the exclusive competence of each Member State)  Expression and proof of the internationalist origin of the Union and of the fact that the Union is still an international organisation (albeit sui generis - see already Van Gend en Loos case)  Difference from national legal order = the Union has no competences of its own (no original competences), but only the specific2 competences conferred to it by the States  The principle of conferral (Article 5 TEU)  Voluntaristic principle = although the transfer of sovereignty tends to be definitive within the EU legal order (“towards an ever closer union”; but see also Brexit) but at the same time strictly voluntary  The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences  Speciality of EU competences (Article 5.2 TEU) = everything that is not expressly mentioned by one of the Articles of the Treaties on the conferral of competences, is not included (and therefore has not bee transferred by the Member States)  In principle, the Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties  There are, however, some elements of flexibility 3 of the system such as the theory of implicit powers and the flexibility clause  Legal basis  Being a direct expression of the principle of conferral, the need for the EU institutions to always identify and make explicit the legal basis of their actions is a peculiarity of the Union's legal system.  As mentioned, the legal bases are the specific dispositions of the Treaties which confer to the Union the power to adopt a given act, i.e. the power to do something  How is the legal basis chosen? The EU institutions are not free to choose the legal basis  Subject matter and purpose of the act = these elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified  Centre of gravity theory: when the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred  Not always applied = see e.g. Directive No. 2014/104/EU on antitrust damages which has Article 103 (competition) TFEU and Article 114 TFEU (internal market) as its legal basis 4 Legal basis – how do they look in the Treaties? Declaring that the Union shall develop a “judicial cooperation in civil matters having cross-border implications”, Article 81 TFEU allowed for example the development of EU Private International Law:  Bruxelles I Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters  Rome I Regulation , on the law applicable to contractual obligations  Rome II Regulation, on the law applicable to extra-contractual obligations  … and many others 5 Legal basis – how do they look in the Treaties? (2) 6 Legal basis – how do they look in secondary law? 7 Legal basis – how do they look in secondary law? (2) 8 Legal basis – how do they look in secondary law? (3) 9  Different kind of competences Article 3 TFEU = exclusive competence Article 4 TFEU = shared competences Articles 5 and 6 TFEU = supporting competences The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty The previous Treaties of course already made reference to 'exclusive' or 'concurrent' competences, but there was no list of specific matters falling into one or the other category Competences were attributed mainly in the light of the purpose to be achieved, rather than by making reference to the subject matter 10 The regime was revised, with the aim of simplification, by the Lisbon Treaty Exclusive competences (Article 3 TFEU) 11  Exclusive competences (Article 3 TFEU)  The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature  it follows that the number of the exclusive competences cannot be increased by way of practice or by the case law  It is not possible to qualify as exclusive a competence which is not mentioned by Article 3 TFEU  Indeed, once again as a consequence of the principle of conferral, new competences always required a revision of the Treaties = only Member States (the “masters of the treaties”) can decide to transfer competencies and powers from the national to the supranational level and they can do so only by amending the Treaties 12  Exclusive competences (Article 3 TFEU)  What does it mean that a competence has been conferred to the EU on an exclusive basis?  It means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene, i.e. only and solely the EU can adopt legal measures in the relevant fields  Member States may intervene in the fields falling within the scope of application of Article 3 TEU only and solely if they are authorised by the Union in advance  This can happen, for example, if it is necessary to regulate detailed aspects that serve to implement EU law  The respect for the division of competence between the EU and Member States, especially in exclusive matters, is interpreted strictly  e.g. competence belongs to the Union (and only and solely to the EU), so that Member States may not intervene even when the the Union has not yet exercised its competence, i.e. even if the EU has not yet adopted secondary law to regulate a given aspect aiming (for example) at the “conservation of marine biological resources under the common fisheries policy” (Article 3(1)(d) TFEU) 13 Shared competence (Article 4 TFEU) 14  Shared competence (Article 4 TFEU)  The list provided by Article 4 TFEU is not exhaustive in nature  Therefore, it only refers to, by way of exemplification, some of the competences which are shared between the EU and the Member States  “shared-by-design” = the shared competences category is a “catch-all” one:  when the Treaties do not establish otherwise (i.e., when the Treaties do not explicitly say that a given field falls within the exclusive or supporting competencies, then it is possible to presume that that matter is conferred to the EU on a shared basis with the Member States  Being the “default” option unless an exception applies in favour of the other kinds of competence, the shared competences category is the most numerous one 15  Shared competence (Article 4 TFEU)  What does it mean that a competence is shared between the EU and the Member States?  It means that, in theory, both the EU and the Member States can intervene (i.e. regulate) with regard to areas which fall within the scope of application of Article 4 TFEU (or that, in ay case, fall within the shared competences  However, this is true only if the matter has not yet been regulated by the EU.  Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter (and, in any case, always in compliance with Union law) 16  Shared competence (Article 4 TFEU)  Pursuant to the pre-emption principle, the Member States’ “quota” of competence in shared matters is therefore subject to gradual erosion in favour of the Union's competences  There is a partial exception for some of the shared competences, which are therefore defined as 'parallel' (i.e. scientific research, technological development and development cooperation or in the case of minimum harmonisation rules)  A 'brake' on this gradual erosion is also provided by Protocol No. 25 on the exercise of shared competences (according to which the principle of pre-emption covers only those elements actually regulated by the adopted act and not the whole area) as well as, and above all, by the principle of subsidiarity (see below) 17  Supporting competences (Articles 5 e 6 TFEU) NB: economic policies 18 Supporting competences (Articles 5 e 6 TFUE) 19  Supporting competences (Articles 5 e 6 TFEU)  As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature  Areas included among the supporting competences are therefore exhaustively identified: training and education, youth, sport, tourism, culture, industry, protection and improvement of human health, civil protection, administrative cooperation  Said areas remain within the competence of the Member States and the EU can only intervene to facilitate coordination among the Member States and/or to support Member States’ action  Example: the Erasmus Programme. Higher education is a matter of State competence, but this programme enables a student to spend a period as an exchange student in another countries and have it recognised in his or her home university system.  The main difference with Article 4 TFEU is that the pre-emption principle does not apply with regard to supporting competences = the action of the EU does not prevent the Member States capability of regulate the same matter, of course always complying with EU law  The possibility for the Union to adopt harmonisation measures is excluded 20  Rigidity vs. flexibility of the competence system The flexibility clause (Article 352 TFEU)  If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions  The flexibility clause has been used with regard to areas that were not originally covered by the Treaty (e.g. environment, consumers protection) but where an intervention of the Union appeared nonetheless necessary in order to achieve on the objectives set by the Treaties (e.g. the establishment of the internal market) as well as for the creation of agencies (material legal basis + Art. 352 TFEU)  Actions based on Article 352 TFEU cannot lead to harmonisation of national rules  Obviously, the use of Article 352 TFEU cannot lead to an implicit amendment of the Treaties, 'escaping' the application of the revision procedures (on which see the relevant lecture) 21  Rigidity vs. flexibility of the competence system The theory of implicit powers  It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it  It is a theory based on the general EU law principle of so-called effet utile  One well-known example is the one of the so-called parallelism of external competences - developed by the Court in the AETR case (1970)  With regard to external competences, the theory is now codified in Article 216 TFEU (and actually also Article 3 TFEU): the EU may enter into an international agreement where [...] it is necessary to achieve, within the framework of the Union's policies, one of the objectives set out in the Treaties, or is provided for in a binding legal act of the Union, or may affect common rules or alter their scope 22  The principles governing the exercise of the competences  The Treaty of Rome did not address the issue of how the competences conferred to the EEC had to be exercised by the latter  The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards (actually, the principle of subsidiarity was already mentioned by the Single European Act but only with regard to the environment)  The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality  These are general principles of EU law (and, as such, primary sources of Union law - see lesson on sources) initially developed by the Court of Justice and later codified in the Treaties (see in particular Protocol 2 to the Lisbon Treaty)  The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the 23Union (Article 5(3) TFEU)  The principle of proportionality  Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty  The Union's action, in other words, must be as little invasive as possible of the sovereignty of Member States and the autonomy of national legal orders  Practical consequence = e.g. general preference (especially in matters of shared competence) for the instrument of the directive instead of the regulation as a source of secondary legislation (see Art. 288 TFEU)  Ratio = The biphasic structure of directives and their (at least in theory) purely harmonising function make this type of act of secondary law inherently more proportional than the regulation, which instead replaces (by virtue of its direct applicability) national legislation with the function of making uniform the applicable legal regime in all the Member States  Judicial review = non-compliance with the principle of proportionality may be invoked before the Court of Justice to seek the annulment (Article 263 TFEU) or a declaration of invalidity (Article 267 TFEU) of any act of secondary law 24  The principle of subsidiarity According to Article 5(3) TFEU:  Who is the subject(s) bound by the principle of subsidiarity?  Who are the beneficiary(ies)? 25  The principle of subsidiarity  By limiting the expansion of shared competences according to the principle of pre- emption, the principle of subsidiarity binds the Union institutions involved in the legislative procedure and in particular the Commission (who, as you know, enjoys a quasi monopoly with regard to the legislative initiative)  The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.  Judicial review = also non-compliance with the principle of subsidiarity may be invoked before the Court of Justice to seek the annulment (Article 263 TFEU) or a declaration of invalidity (Article 267 TFEU) of any act of secondary law 26  Protocol 2 to the Lisbon Treaty  Protocol on the application of the principles of subsidiarity and proportionality  Allows for an ex ante political control on the respect of the principle (and thus of national prerogatives)  Applies only in respect of legislative acts i.e. acts adopted by (ordinary or special) legislative procedure (see lesson on sources)  The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations (e.g. publications Green Papers, White Papers, legislative proposals).  The burden to “sate reasons” imposed on the Commission (and the institutions) by Article 296 TFEU includes the obligation to27 justify every legislative proposal also with regard to compliance with the principle of subsidiarity (+ impact assessment)  Protocol 2 to the Lisbon Treaty  Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion (2 votes for each parliament)  The fact that the control is exercised by national Parliaments is consistent with the purpose of the principle of subsidiarity, which, as mentioned, protects the Member States Yellow card Orange card 1/3 negative votes (1/4 if Area of Majority negative votes Freedom, Security and Justice) Commission must reconsider Commission must reconsider the The Commission can keep the proposal, Proposal but if > Members of Parliament or 55% of Commission may maintain, amend 28 the Council are against the proposal, the or withdraw the proposal proposal is abandoned  Thank you! - questions? PROF. AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 29