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Lectures institutional law of the EU
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Lectures institutionalLecture 2 – The validity of EU legislation: these 6 criteria are needed for an act to be valid!!
Competence to act
• Principle of conferral/attributed powers (5(2) TEU and 1(1) TFEU); the union shall
only act within the limits of the competence conferred upon it by the MS in the
treaties, if not the competence remains with the Ms so they can only act if they have
competence and the competence should be mentioned in the treaty
• Exclusive competence (2(1) and 3 TFEU): only the union may legislate and
adopt legally binding acts, so in exclusive areas only the union may act. There
a limited list in art 3 TFEU
• Shared competence (2(2) and 4 TFEU): both the MS and the Union may act,
it’s a shared area, the list is mentioned in art 4(2) TFEU, it’s not limited! it’s
the main competence in the EU. So what is not mentioned in art 3 and 4 are
shared competence. But when the union had acted the states cannot act
anymore = principle of pre-emption. If the union has created a rule on for
example consumer protection that does not mean that the MS can’t act on
the whole area, it only counts for that rule (blz 143 protocol 25) art 4 (3)(4)
TFEU: MS can still can’t even though the Union has already acted so principle
of pre-emption doesn’t apply for those areas
• Supporting, coordinating or supplementary competences (2(5) and 6 TFEU): in
art 6 there is a list where the union has competence, the MS can still act but
the union can help them.
• Other categories (e.g. CFSP = external policy, 2(4) TFEU): doesn’t fall under
one of those three
Principles of subsidiarity and proportionality so if the union has a competence to act, the
Principles of subsidiarity and proportionality will deal with if they should act: they deal with
the use of powers
• Subsidiarity (5(3) TEU and Protocol No 2): union shall only act when it cannot be
sufficiently achieved by the MS, they will be better achieved by the Union. This is not
applicable in exclusive competence because then only the Union may act! So only in
shared competence
- ‘Early warning system’ (protocol 2, blz 126):
• art 2: only to legislative acts! Before the commission proposes a
legislative act, they should consult so everyone (MS) can give
advice/feedback.
• Art 4: ews: every proposal for a legislative act should be sent to the
national parliament and then they can give a reasoned opinion on why
the principle of subsidiarity is infringed
• Four options (Article 7)
• No reasoned opinion (not mentioned in article: there is
a time limit)
• (1): reasoned opinion: they should take it into account
• (2): yellow card: when at least 1/3 votes of national
parliament believe this infringes the principle of
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