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Summary probleem 6 Introduction to International and European Union Law
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Working group elaborations problem 6 Introduction to International and European Union Law
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Problem 6 IELLegal order: the totality of legal norms applicable in a given territory, such as a state. Many
will associate it with the territorial state and the hierarchy of norms that govern the exercise
of public power and the relations between the citizens and the executive in any one country.
A legal order can be said to exist when two conditions are met:
- Authority: requires the legal order to have its own institutions to ensure that the
norms are enforced, and disputes are settled.
- Autonomy: means that the norms that make up the legal order are self-referential
and do not rely on other norms for meaning of validity.
Learning objecti ves
1. When is the EU competent to act? What are the categories of competences of the EU?
The European Union has the authority to declare a law of a member state contrary to EU
law, forcing that member state to change that law and thus its own legal order.
Individuals can enforce EU law vis-à-vis the state authorities of their own member state.
In relation with third countries, the EU can impose trade sanctions on imports from third
countries. These interventions all take a legal form, but law needs to be effective and the
logical question is whether and to what extent the EU can ensure this effectiveness in and of
itself of whether it is dependent on the national legal orders of the member states to be
effective.
The EU can only claim to be indirectly constituted by the people via the member states. So
the EU’s legal actions are thus only as effective as the member states’ legal orders allow
them to be.
Categories of Union Competences
Where is the dividing line between EU competencies and those of the Member States?
This dividing line is drawn on the basis of the following categories of competence:
Exclusive competences exclude the Member states from acting within the same policy area.
Non-exclusive competences permit the Union and the Member States to coexist.
In order to provide a clear picture of the vertical division of powers, each policy area should
ideally correspond to one competence category.
The Treaties today distinguish between various categories of Union competence in art. 2
TFEU. The provision reads as follows:
1. 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 Union
acts.
2. When the Treaties confer on the Union a competence shared with the Member States in
a specific area, the Union and the Member States may legislate and adopt legally binding
acts in that area. The Member States shall exercise their competence to the extent that
the Union has not exercised its competence. The Member States shall again exercise
their competence to the extent that the Union has decided to cease exercising its
competence.
, 3. The Member States shall coordinate their economic and employment policies within
arrangements as determined by this Treaty, which the Union shall have competence to
provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on
European Union, to define and implement a common foreign and security policy,
including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas. Legally
binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonization of Member States' laws or regulations.
Outside the Common Foreign and Security Policy, the Treaties thus expressly recognize four
general competence categories:
Exclusive competence;
Shared competences;
Coordinating competences;
Complementary competences.
Art. 3 to 6 TFEU correlate the various Union policies to a particular competence category.
Exclusive competence (art. 3 TFEU): areas in which only the Union may legislate and adopt
legally binding acts, while the Member States will only be enabled to act if so empowered by
the Union or for the implementation of Union acts. Art. 3(1) 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.
These areas where it can be assumed that a measure at EU level will be more effective than
a measure in any Member State that is not coordinated.
Shared competences between EU and Member States (art. 4 TFEU): the Union and the
Member State may legislate. But both are prohibited from acting at the same time. (art.
2(2)). The Member States may only legislate in that part which the European Union has not
(yet) entered. Within one field, either the European Union or the Member States can
exercise their shared competence. Unless the Treaties expressly provide otherwise, a Union
competence will be shared. This is in areas where action at Union level will add value over
action by Member States.
There is shared competence for internal market rules, economic, social and territorial
cohesion, agriculture and fisheries, environment, transport, trans-European networks,
energy supply and the area of freedom, security and justice, and also for common safety
concerns in public health matters, research and technological development, space,
development cooperation and humanitarian aid. In all these areas the EU can exercise
competence first, but only with regard to matters laid down in the relevant Union
instrument and not to the entire policy area.
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