European Law Chapter 3 2019-2020
CHAPTER 3
FRAMING THE NORMATIVE FUNCTION OF THE EU
What can and does the European Union do?
A. The original source of EU law: primary law
A. EU primary law provides a road map
= what the EU can do, and what it can not do
1. The EU Treaties as the starting point (reminder from Chapter I)
The EU treaties perform a ‘constitutional’ function in the EU legal order Notion of ‘primary’
(Union) law
The idea is:
One of a family tree. in many books you find the second an third category that those are being
merged to secondary law with two layers.
see further ‘secondary’ law
and possibly even further ‘tertiary’ law
in many materials on EU law the last to categories are being merged: then secondary law has to
levels
2. The policies of the European Union
In the EU Treaties, especially part three of the TFEU, you find a list of the areas of competences
of the European Union. In other words the union policies of the European Union.
= Article 1(1) TFUE
There is one exception: the Common Foreign Security Police is governed by the TEU and not
by the TFEU. This is just a long list of the areas in which the EU is active. It is just an illustration
of a wide range of policies of the European Union.
For example: agriculture, environmental protection, food safety,… This is the competence the
EU has developed since the early 1990’s. If you want to have more details, you need to look in
different courses.
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B. Defining the existence of an EU competence
B. What can the EU do?
What are the general principles that regulates the EU competence?
It all starts with the Treaties. You need to look at what is in the Treaties.
The principle of conferral
(Art.5(1)-(2) TEU, see also Art.4(1) TEU)
The question is: What can the EU do?
The European Union has competence to intervene. The Union can only do what it is
empowered to do. In other words, European Union intervention is governed by the principle
of confer. It can only do what it has been allowed to do. It can only do what has been
conferred upon it.
1. You need to look in (Art.5(1)-(2) TEU, see also Art.4(1) TEU)
Article 5 TEU says that “the limits of the Union are governed by the principle of
conferral. The use of Union competences is governed by the principles of subsidiarity
and proportionality.”
o In other words the Union shall only act within the limit of the competences
conferred upon it by the Member States in the Treaties.
A contrario competences that are not conferred upon the EU, stay with the Member States.
The competences must be given in the EU Treaties.
Very often the critics are misunderstanding, because the EU cannot do what they are not
empowered to do.
For example: family law, criminal law.
This principle of conferral implies on every single institution. The Union shall act only within
the limits of the competences conferred upon it by the Member States in the Treaties to attain
the objectives set out therein
You need to look in the Treaties, but what are we looking for in the Treaties?
The Treaties provide a legal basis.
Do the Treaties provide legal bases that allow the EU to act?
A legal basis is a provision of the EU Treaties or of the EU secondary law that enables EU
institutions to take action. If you cannot find a legal basis, than the EU cannot take action.
Can the EU act in the field that I am interested in (agriculture etc)? Does there exist a
competence for the EU to act?
NO: reflection on national level, the EU can not help you
YES: look at the situation how it really is
principle of conferral; it is only allowed to do what it is empowered to do by the Treaties
and to attain the objectives set out therein.
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(!! The Treaties are ratified by the MS)
(Reminder: Art.13(2) TEU on conferred powers & EU institutions: which institution is
empowered to do something, otherwise you disturb the institutional balance)
Why did the Commission reject this citizen’s initiative?
Initiative: British – France stay with us; to create a platform in which all EU citizens could be a
part and have their opinion on the Brexit.
Why did the Commission decide not to follow up this initiative?
While the European Commission regrets the decision of the UK to withdraw there is no legal
basis in the Treaties which would allow for the adoption of a legal act relating to the decision-
lacing progress within a MS in connection with the notification.
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2. The choice of legal basis
If the EU actors can identify the existence of a legal basis in the EU Treaties
a. Importance of the choice of legal basis
A legal basis is a provision of the EU Treaties or of EU secondary law that enables EU
institutions to take action (to adopt EU law).
The legal basis can be on primary and on secondary law.
Are Article 2 TEU and/or Article 18 (2) TFEU legal bases allowing for the adoption of EU
measures?
If you look at the Treaties
Art 2 = spells out the values
Article 2 TEU
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of
law and respect for human rights, including the rights of persons belonging to minorities. These values are
common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.
= not a legal basis, because this does not empower institutions to act.
Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, may adopt rules designed to prohibit such discrimination.
= a legal bases; only art 18 §2 TFEU that is a legal basis
Article 114 TFEU
1. Save where otherwise provided in the Treaties, the following provisions shall apply for the
achievement of the objectives set out in Article 26. The European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and after consulting the Economic and
Social Committee, adopt the measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the establishment
and functioning of the internal market.
= legal basis because it empowers the EU to act for specific procedures.
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