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Summary Introduction to International and EU law reporting problem 4
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Introduction to International and EU law reporting problem 4
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Introduction to International and EU law reportingproblem 4
Learning objectives
- When is the EU competent to act and what are the competences of the EU?
- What are the types of competences?
- What is the meaning of the principle of subsidiarity?
- Which are the EU legislative procedures?
Not discuss: direct effect
Literature:
- R. Schutze, 2020, pp. 37-82.
o ABC: Solidarity, p. 29, Powers of the EU, p. 54-57, Means, p. 98-108, Legal
acts, p. 111-117
When is the EU competent to act and what are the
competences of the EU?
The powers of the EU must be conferred on it by the Member States of the EU in the
European Treaties. This is called the principle of conferral (art. 5(2) TEU). A legislative
competence is the material field within an authority is entitled to legislate. The Union’s
competences aren’t laid down in a single list in the Treaties. The competences for each and
every Unions activity is laid down in the respective Treaty title dealing with that activity.
Three legal developments have undermined the principle of conferral. These developments
have led to the accusation that the Union’s competences are unlimited. The developments
are:
- An increase in teleological interpretation of treaties, leading to a spill over effect,
where the Union’s competences spill over into other policy areas
- An increase in the Union’s general competences. In addition to its specific
competences in specific areas the Union enjoys two general legislative competences
that horizontally cut across the various policy titles within the Treaties.
- The doctrine of implied external powers.
Teleological interpretation
The Union must act within the limits of the competences conferred upon it by the Member
States (art. 5(2) TEU). The Union is able to autonomously interpret the scope of its
competences by embracing the technique of the teleological interpretation. The teleological
interpretation looks at the purpose of a rule. It looks behind the legal text in search of a legal
solution to a social problem that may not have been anticipated when the text was drafted.
Teleological can therefor constitute a small amendment of the original rule. This technique
can be seen in relation to European competences and in relation to European legislation.
The teleological interpretation has spilled over into the sphere that the Member States had
believed remained within their exclusive competences.
, General competences of the EU
In principle, the Treaties grant a specific competence to legislate within each policy are. In
addition to these specific competences, the Union legislator also enjoys two general
competences. These general competences are not specific to a policy area, but horizontally
cut through the Union’s sectoral policies. They have been used to develop policies not
expressly mentioned in the Treaties. The general competences are:
- Harmonization competences (art. 114 TFEU)
- Residual competence (art. 352 TFEU)
Harmonization competences (art. 114 TFEU)
On the basis of this article the EU has the capacity to apply measures for the approximation
of national law ‘which have as their object the establishment and functioning of the internal
market’. The European legislator could use its harmonization power to prevent future
obstacles to trade or a potential fragmentation on the internal market. Three limits to this
power:
- European law must harmonize national laws. Thus, Union legislation which leaves
unchanged the different national laws already in existence, cannot be regarded as
aiming to approximate the laws of the Member States.
- A simple difference between national laws is not enough for the Union’s
harmonization competences to be used. Thus, while art. 114 TFEU can be used to
harmonize future disparities, it must be ‘likely’ that the divergent development will lead
to obstacles in trade.
- The Union legislation must actually contribute to the elimination of obstacles to free
movement and distortions of competition
Residual competences (art. 352 TFEU)
This article constitutes the most general competence within the treaties. It allows the Union
to legislate as follows: ‘if action by the Union should prove necessary, to reach 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’.
There are two ways to use this competence:
1. It can be used in a case/policy title in which the Union already has a specific
competence, but this is deemed to be insufficient in order to achieve a specific goal.
2. It can be used to develop a policy area that has no specific title within the Treaties.
There are three textual limitations to article 352 TFEU:
1. Measures based on this article shall not entail (met zich meebrengen) harmonization
of such Member States’ laws or regulation in cases where the treaties exclude such
harmonization. This precludes the use of the Union’s residual competence in specific
policy areas in which the Union is limited to merely ‘complementing’ national action.
2. The article cannot serve as a basis for achieving objectives in relation to the common
foreign and security policy. This is designed to protect the constitutional boundary
drawn between the TEU and the TFEU.
3. The European Court has also recognized an indirect limitation to the Union’s residual
competence: while accepting that this article could be used for ‘small’ amendments to
the Treaties, the Court has insisted that it could not be used to effect ‘qualitative
leaps’ that constitute big chances to the constitutional identity of the European Union.
The doctrine of implied external powers
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