Summary Extensive elaboration problem 7 Introduction to International and European Law
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Course
Introduction To International And European Law
Institution
Erasmus Universiteit Rotterdam (EUR)
Here you will find the extensive elaborations of the learning objectives of problem 7 of Introduction to International and European Law.
Books used:
- F. Amtenbrink & H. Vedder, European Union Law
- Cases and Materials International and European Union Law
Probleem 7
What are the categories of competences?
Implicit external competence
The Treaties acknowledge the international personality of the Union (art. 47 TEU), which
means that the union can engage in the conclusion of international agreements.
ERTA and the Doctrine of Parallel Powers
The European Road Transport Agreement had been drafted to harmonize certain social
aspects of international road transport, and involved a number of member states as
potential signatories. The Commission was excluded and brought the case before Court.
It argued that the Union competence under its transport policy included a treaty-making
power. With regard to the scope of the Union’s external powers, the Commission argued
that article 91 TFEU conferred on the Union powers defined in wide terms with a view to
implementing the common transport policy which must apply to external relations just as
much as domestic measures. The effect of this provision would be jeopardized if the powers
which it confers did not extend to the conclusion of agreements with third countries.
The Council opposed this statement by contending that article 91 TFEU only relates to
internal measures, and cannot be interpreted as authorizing the conclusion of international
agreements.
The Court agreed with the Commission (paragraphs 6, 9-11, 15-22, 90-92). In the light of the
general scheme of the Treaty, the Union’s power to adopt any other appropriate provision
to give effect to the union’s transport policy objectives was interpreted to include the legal
power to conclude international agreements. From the very fact that the Union enjoyed an
internal power, the Court implied an external power to conclude international treaties for all
matters falling within the scope of the Union’s internal competence.
Codification
The implied powers of the doctrine are codified in article 216 TFEU. The provision grants the
Union a residual competence to conclude international agreements in three situations:
1. A treaty power is conferred to the Union where the conclusion of an agreement is
necessary in order to achieve, within the framework of the Union’s policies, one of
the objectives referred to in the Treaties.
2. The Union is entitled to conclude international agreements, where this is provided
for in a legally binding act or (3) is likely to affect common rules or alter their scopes.
, Four categories of competence
There are four general competence categories:
1. Exclusive competences
2. Shared competences
3. Coordinating competences
4. Complementary competences
Articles 3 to 6 TFEU correlate the various Union policies to a particular competence category.
Exclusive competences (art. 3)
Exclusive competences are defined as areas in which only the Union may legislate and adopt
legally binding acts, while the member states will only be enabled to do so when
empowered by the Union for implementation of Union acts. Article 3(1) TFEU mentions five
policy areas:
1. The customs union
2. The establishment of the competition rules necessary for the functioning of the
internal market
3. Monetary policy for the member states whose currency is the euro
4. The conservation of marine biological resources under the common fisheries policy
5. The common commercial policy
Aside from the areas in which the Union has exclusive competence, article 3(2) TFEU
stipulates that the Union may subsequently obtain exclusive treaty-making power, where
one of three situations are fulfilled:
1. The Union will obtain a subsequently exclusive treaty-making power when the
conclusion of an international agreement is provided for in a legislative act (WTO
Doctrine)
2. The Union has an exclusive treaty power, where this is necessary to enable the Union
to exercise its internal competence (opinion 1/76 doctrine)
3. Member states are deprived of their treaty-making power to the extent that their
exercise affects internal European law (ERTA doctrine). This to prevent that treaties
with third-parties could undermine the uniform and consistent application of EU-law.
Shared competences (art. 4)
This is the ordinary competence of the European Union. Unless the Treaties expressly
provide otherwise, a Union competence will be shared. The Union and the member states
may legislate. Article 2(2) TFEU stipulates that the member states cannot exercise their
competence simultaneously to the Union, and vice versa.
Paragraphs 3 and 4 of article 4 TFEU separate the policy areas of research, technological
development, space and humanitarian aid from normal shared competences. The rule fore
these special situations are that the exercise of that competence shall not result in a
member state from being prevented from exercising theirs.
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