MS – Member States

LAW 1020

16/10/2019

EU Law

Competences
Courts play significant role in shaping competences – if they’re written very clearly and with little
room for ambiguity, the courts are limited in the way they can interpret them.

Exclusive competences – belong to the Union exclusively

Shared Competences – the EU and Member States share these competencies. Whether the EU
should legislate or whether Member States should. Principle of Subsidiary and Principle of
Proportionality

The Principle of Conferral

Union can only act if it has been given competences by Member States. This is very different to
Member States way of usually operating as they usually give themselves competences. The EU
doesn’t have this and can only act if given competence by Member States.

So who should be in charge to make decisions as to whether the EU overstepped its competencies?

German constitutional court claims it should be the one to determine if the EU oversteps. Its
argument is that since the authority to give the EU competence sits with Member States, they
should be the one to decide if they have overstepped or not.

Doctrine of implied powers – endorsed by the Court in case 8/55 Federation Charbonniere. Means
that if the EU has competence internally, it should also have competence externally.

Competences
Exclusive Competences:

Article 2.1 TFEU – When the Treaties confer on the Union exclusive competence in a specific area,
only the Union may legislate and adopt legally binding acts, the Member States being able to do so
themselves only if so empowered by the Union or for the implementation of acts of the Union.

It’s up to the Union to legislate, a Member State cannot do anything without the Union’s go ahead.
E.g. Articles 3.1 and 3.2 TFEU (rules which are necessary for establishing of competition, internal
market, monitoring policy, etc. These are areas where the EU has exclusive competence)

Shared Competences:

Article 2.2 TFEU – in theory, Member States can legislate, but also the Union. But what you cannot
have is that in the situation of legislation, the Union says A and Member States say B – this is to be
MS – Member States

avoided. So in order to avoid this, we have two principles in operation; the principles of subsidiarity
and proportionality.

What policy areas are we speaking about?

Article 4 TFEU – Social policy, transport, economic, etc.

Principles of Subsidiarity:

 Article 5.3 TEU – Under the principle of subsidiarity, in areas which do not fall within its
exclusive competence, the Union shall act only if and insofar as the objectives of the
proposed action cannot be sufficiently achieved by Member States, either at central level or
at regional and local level,
 Dates back to the rule of the Roman Catholic church
 Done by deciding that if you cannot make a decision on a regional/national level, the
responsibility to make the decision will be delegated to the EU (upscaled to a supranational
level)
 Often used to downscale to the levels of the Member States, but in principle it can be used
either way to upscale and downscale.
 Courts do not seem to use this principle – hard to know why this is the case, but one reason
could be that the principle only made it into the Lisbon Treaty quite recently even though
the concept existed for years prior. Other reason is its not terribly concise so leaves a lot of
room for interpretation – in a way, an elusive statement.
 Early Warning System – linked to principle of subsidiarity. National parliaments become
involved. An option for national parliaments to say whether they think the principle of
subsidiarity has been violated. Yellow level: If a third of parliaments say this, then the
Commission must review the proposal and give justifications as to why it thinks the EU
should be able to legislate. It’s basically a way for national parliaments to raise concerns and
claim they think a piece of legislation violates the principles. They cannot stop the process
on a European level, only get it reviewed. Orange procedure applies in the context – only
kicks in if 50% of national parliaments raise concern about a piece of legislation. If it
happens, the Commission needs to justify itself, then the legislator, Council and the EU
Parliament giving the go ahead. Benefit is that national parliaments are better linked to what
is taking place on a European level. There’s a risk that national parliaments may use this
procedure to undermine governments.

Principle of Proportionality:

 Article 5.4 TEU – Under the principle of proportionality, the content and form of Union
action shall not exceed what is necessary to achieve the objectives of the Treaty
 Basically says you have a specific goal you want to achieve, but you don’t want to do more
than is necessary to achieve it – what is the least restrictive measure in order to achieve a
goal?
 E.G. Familiapress: ‘It must therefore be determined whether a national prohibition such as
that in issue in the main proceedings is proportionate to the aim of maintaining press
diversity and whether that objective might not be attained by measures less restrictive
 Overlap with principle of subsidiarity – the court seems more confident and willing to use
this principle.

Article 6 TFEU – The Union shall have competence to carry out actions to support, coordinate or
supplement the actions of Member States. The areas of such action shall, at European level, be:
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Protection and improvement of human health; industry; culture; tourism (Article 195); education,
vocational training, youth and sport; civil protection; administrative cooperation

Enhanced Cooperation
Article 20 TEU – Only for those Member States who participate in a certain legislation (usually
minimum of 9 with permission of Parliament, Commission and Council) will the law they create apply
to. It won’t apply to Member States that aren’t participating. If MS decide to go ahead, it cannot be
exclusive and needs to be open to other MS in case they want to join later. Only the last resort, you
need to try and get all MS to reach an agreement first, and if you can’t, only then can you go ahead
with enhanced cooperation.