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6. Competences OF THE EU

European Union Law (Libera Università Internazionale degli Studi Sociali Guido Carli)

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COMPETENCES OF THE EU

Art. 1 TEU states that “this Treaty marks a new stage in the process of creating an ever closer union”.

This union in founded on the values of respect for human dignity, freedom, democracy, equality, the rule
of law and respect for human rights (including for minorities). Art. 2 TEU

The basic aims of the EU are listed in Art. 3 TEU:

 Promote peace
 Offer citizens an area of freedom, security and justice
 Establishment of an internal market
 Establishment of an economic and monetary union
 Promote its values and interests in the external relations

EU AND MEMBER STATES

1. Art. 5 (2) TEU principle of conferral

2. Art. 4 (3) TFEU  principle of sincere cooperation
3. Respect of the equality of MS and of their national identity

1. The Treaty of Lisbon clarifies the system of distribution of competences between the EU and the Member
States. the EU has NO “inherent powers” (the EU is neither “sovereign” nor a “state”; its powers must be
conferred by its fundamental charter: the European Treaties).
“Under the principle of conferral, the Union shall act within the limits of the competences conferred upon
it by the MS in the treaties to attain the objectives set out therein, all other competences remaining with
the MS”.

Three legal developments have posed serious threats to the principle of conferral: the rise of the
teleological interpretation, the rise of Union’s general competences and the doctrine of implied powers.
An ordinary revision procedure of the Treaties may extend or reduce the competences conferred on the
Union in the Treaties (art. 48(2) TEU).

2. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take
any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the
achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of
the Union's objectives.

THE TELEOLOGICAL INTERPRETATION

“The Union must act within the limits of the competences conferred upon it by the MSs” (art.5(2) TEU).

 A strict principle of conferral would deny the Union the power to autonomously interpret its
competences. The interpretation of international treaties must be in line with the historical
intentions of the MSs. This is made to preserve the sovereign rights of States.
 A soft principle of conferral allows the teleological interpretation of competences, according to
which we have to look at the purpose of a rule, not its historical will. Therefore, it can partly
constitute a small amendment of the original rule.

Famous is the Casagrande Case. In order to facilitate the free movement of persons in the internal market,
the Union had adopted legislation designed to abolish discrimination between workers of different MS as
regards employment, remuneration and other condition of work.

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“the children of a national of a MS who is or has been employed in the territory of another MS shall be
admitted to that state’s general educational, apprenticeship and vocational training courses under the same
conditions as the national of the state, if such children are residing in that state. MS shall encourage all
efforts to enable such children to attend these courses under the best possible conditions”

In art. 12 its specific provision was interpreted more broadly, entitling the son of an Italian worker
employed in Germany to receive not only the admission to the studies but also an educational grant.
The original treaty didn’t find any kind of differences between competence categories. In the 70s it was
reached an accommodation:

The TFEU present a categorization of competences:

1. Exclusive competences (art. 3 TFEU)

2. Shared competences (art. 4 TFEU)
3. Coordinating competences (art. 5 TFEU)
4. Supporting competences (art. 6 TFEU)
5. CFSP competence (art. 2(4) TFEU and Title V TEU)

EXCLUSIVE COMPETENCES (art. 3)

The Union shall have exclusive competences in the following areas:

 Customs union
 Establishment of the competition rules necessary for the functioning of the internal market
 Monetary policy (for MS with currency Euro)
 Conservation of marine biological resources under the common fisheries policy
 Common commercial policy

Exclusive powers are constitutionally guaranteed monopolies. They are double-edged provisions: their
positive side entitles one authority to act, their negative side excludes anybody else from acting
autonomously within its scope.

Only the Union may legislate and adopt legally binding acts. MS may be able to do so only if so empowered
by the Union or for the implementation of EU acts. The transfer of powers to the EU is total and definitive:
a failure to act by the EU could not in any case restore to the MS the power and freedom to act unilaterally
in these fields.

SHARED COMPETENCES (Art.4)

Areas of:

 Internal market
 Social policy
 Economic, social and territorial cohesion
 Agriculture and fisheries, excluding the conservation of marine biological resources
 Environment
 consumer protection
 transport
 trans-European networks
 energy
 area of freedom, security and justice
 common safety concerns in public health matters

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In these areas, the Union and the MSs may legislate and adopt legally binding acts in that area. The MS shall
exercise their competence to the extent that the Union has not exercised its competence (principle of pre-
emption).

There can be minimum standard competences art. 1.2 they are share competences that, however, limit
the Union to the adoption of a common minimum (i.e. environmental policy). At the same time, art. 1.3
said that the European legislation shall not prevent any MS from introducing or maintaining more stringent
protective measures that the minim standards set by the Union, under its shared competence.

Declaration 18 in relation to the delimitation of competences

“When the Treaties confer on the Union a competence shared with the Member ctates in a specific area, the
Member ctates shall exercise their competence to the extent that the Union has not exercised, or has
decided to cease exercising, its comnetence. The latter situation arises when the relevant EU institutions
decide to reneal a legislative act, in narticular better to ensure constant resnect for the nrincinles of
subsidiarity and nronortionality.
The Council may, at the initiative of one or several of its members (representatives of Member ctates) and in
accordance with Article 241 of the Treaty on the Functioning of the European Union, request the
Commission to submit proposals for repealing a legislative act”.
Article 241 TFEU
“The Council acting by a simple majority may request the Commission to undertake any studies the Council
considers desirable for the attainment of the common objectives, and to submit to it any appropriate
proposals. If the Commission does not submit a proposal, it shall inform the Council of the reasons”.

COORDINATING COMPETENCES (art.5)

1. the Member States shall coordinate their economic policies within the Union. The Council shall
adopt measures, in particular broad guidelines for these policies (specific provisions apply to MS
whose currency is the euro).

2. The Union shall take measures to ensure coordination of the employment policies of the Member
States, defining guidelines.

3. The Union make take initiatives to ensure coordination of MS’ “social policies”

SUPPORTING COMPETENCES (art. 6)

The Union shall have competence to carry out actions to support, coordinate or supplement the actions of
the MS in areas such as:

 Protection and improvement of human health

 Industry

 Culture

 Tourism

 Education, youth and sport

 Civil protection

 Administrative cooperation

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The EU can’t harmonize the law in these areas, but it can pass legally binding acts on the basis of provisions
specific to them, and the Member States will be constrained to the extent stipulated by such acts.

THE GENERAL COMPETENCE OF THE UNION

Harmonization competence (art. 114 TFEU)

The EU is entitled to adopt measures for the approximation of national laws which have as their object
the establishment and the functioning of the internal market.
The scope of the Union’s harmonization power appeared devoid of constitutional boundaries. Yet the
existence of constitutional limits was confirmed in Germany v. Parliament and Council (Tobacco
advertising). The court insisted on 3 constitutional limits on the Union’s harmonization power:

1. EU law must harmonize national laws

2. A simple disparity in national laws will not be enough the Union’s harmonization competence

3. Union legislation must actually contribute to the elimination of obstacles to free movement or
distortions of competitions.

RESIDUAL COMPETENCES (art. 352 TFEU)  the flexibility clause

Art. 352 TFEU is the successor provision to art. 308 TEC (“if action by the Community should prove
necessary to attain, in the course of the operation of the common market, one of the objectives of the
Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on
a proposal from the commission and after consulting the European Parliament, take the appropriate
measures”.
This article was used to legitimate legislation in areas such as the environment and regional policy, before
these matters were dealt with through later Treaty amendments.

Opinion 2/.4 of 28th March 1..6 stated “that provision cannot serve as a basis for widening the scope of
Community powers beyond the general framework created by the provisions of the Treaty as a whole and
by those that define tasks and the activities of the Community. That provision cannot be used as a basis for
the adoption of provisions whose effect would, in substance, be to amend the Treaty without following
the procedure which it provides for that purpose”.

With art. 352 the only real limit seemed to lie in a political safeguard: unanimous voting in the Council.
Therefore, some MS established prior parliamentary authorization mechanism for art. 352.

New text of the flexibility clause:

“1. If action by the Union should prove necessary, within the framework of the policies defined in the
Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not 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 measures. Where the
measures in question are adopted by the Council in accordance with a special legislative procedure, it shall
also act unanimously on a proposal from the Commission and after obtaining the consent of the European
Parliament.

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2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on
European Union, the Commission shall draw national Parliaments' attention to proposals based on this
Article.

3. Measures based on this Article shall not entail harmonisation of Member States' laws or regulations in
cases where the Treaties exclude such harmonisation.

4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and
security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40,
second paragraph, of the Treaty on European Union.

USE OF THE UNION COMPETENCES (art. 5 TEU)

The use of the union competences is governed by:

 Principle of subsidiarity in areas which do not fall within its exclusive competence, the Union
shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved
by the MSs but can rather be better achieved at Union level. 2 tests: national inefficiency test and
comparative efficiency test.

 Principle of proportionality  the content and form of Union actions shall not exceed what is
necessary to achieve the objectives of the Treaties.

These principles are stated in the Protocol on the application of the principles of subsidiarity and
proporionality.  any national Parliament may, within 8 weeks, from the date of transmission of a draft
legislative act, in the official languages of the Union, send to the President of the European Parliament, the
Council and the Commission a reasoned opinion stating why it considers that draft in question does not
comply with the principle of subsidiarity.
The latter shall take account of the reasoned opinions issued by national Parliaments or by a chamber of
a national Parliament. Each national Parliament has 2 votes, based on their electoral system.

If reasoned opinions on a draft legislative act’s non-complience represent at least one-third of all the votes
allocated to the national parliaments, the draft must be reviewed (yellow-card mechanism).
After such review the commission/group of MS/European Parliament/Court of Justice/European Central
Banks/European Investment Banks may decide to maintain, amend or withdraw the draft and they must
give reasons for their choice.

Under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal
for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes
allocated to the National Parliaments, the proposal must be reviewed. After that, the Commission may
decide to maintain, amend or withdraw the proposal (orang-card mechanism).

If, by a majority of 55% of the members of the Council or a majority of the votes cast in the European
Parliament, the legislator think that the proposal is not compatible with the principle of subsidiarity, the
legislative proposal shall not be given further consideration.

ENHANCED COOPERATION PROCEDURE (Art. 20 TEU and provision of Title III of Part VI TFEU)

ACTIVATION:

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1. At least . members states shall call for the enhance cooperation through a formal request to the
Commission, specifying the scope and the objectives.

2. The Commission shall evaluate the request and then may submit a proposal to the Council to
authorize this cooperation. In the event where the Commission does not submit a proposal to the
Council, it shall inform the member states concerned of the reasons for not doing so

3. The Parliament shall consent to the enhanced cooperation

4. The Council shall give its authorization with a formal decision adopted through its ordinary
decision-making procedure (qualified majority voting).

LIMITS AND CONDITIONS:

It is excluded in the framework of the EU’s exclusive competences. The enhanced cooperation is a last
resort and shall comply with the Treaties and EU law.

FUNCTIONING:

The MS that take part in an enhanced cooperation make regular use of the institutions of the EU: the
supranational bodies such as the EP and the Commission exercise their normal powers and work in their
standard composition.
In the working of the Council, however, an exceptional rule applies: all members of the Council may
participate in its deliberation, but only members representing State participating in the e.c. shall take part
in the voting. As such, unanimity of the participating states; and qualified majority recalculated accordingly.

Participating States are allowed to adopt legislative and non-legislative acts permitted by EU law. The e.c.
must respect the competences, rights and obligations of those member states which do not participate in it.
The acts adopted in the framework of the enhanced cooperation shall bind only participating members.
Expenditure (other than administrative costs) shall be borne by the participating members, unless all
members of the Council unanimously (after consulting the EP) decide otherwise.

ACCESSION OF NEW STATE TO AN ONGOING ENHANCED COOPERATION:

1. The MS that wishes to participate in an ongoing e.c. shall notify its intention to the Council and the
Commission

2. The commission shall, within 4 months, evaluate the request. At the end it may:

 Confirm the participation of the MS concerned.

 Consider that the conditions of participation have not been fulfilled and indicate the
arrangements to be adopted to fulfil those conditions and shall set a deadline for re-
examining the request. If again considers the condition not met than the MS may refer the
matter to the Council, which shall decide through a vote of the States which are parties to
the e.c.

Established enhanced cooperations

• 2010/405/: Council Decision of 12 July 2010 authorising enhanced cooperation in the area of the law
applicable to divorce and legal separation
• 2011/167/EU: Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the

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creation of unitary patent protection

• 2013/52/EU: Council Decision of 22 January 2013 authorising enhanced cooperation in the area of
financial transaction tax

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