Advanced European Law – Week 2
Kieran St C Bradley, ‘Legislating in the European Union’, in C. Barnard and S. Peers (eds), European
Union Law (2017) chapter 5, only pp. 105-119).
4. Competences and conferral
4.1 “Competence” as ability and “competence” as power
The EU treaties use the term “competence” as a synonym for both “legal authority” or “power”, though the
former usage of the term is primarily relevant for the present chapter.
4.2 Conferral
The principle of conferral underlies the division of competences between the Union and the Member States
and is set out in Article 1(1) TEU, which states that “the Member States confer competences to attain
objectives they have in common”. Throughout the treaties, this principle is repeated insistently.
4.3 Grants of legislative power (“legal bases”)
The treaties grant the Union legislative competence in a number of discrete areas. In two cases, the Union’s
legislative competence is phrased primarily in terms of pursuing objectives, namely in those of ensuring the
functioning of the internal market (Article 114 TFEU) and attaining Union objectives where the necessary
powers have not been provided elsewhere (Article 352 TFEU). In accordance with the principle of conferral,
every binding act the Union adopts must have a legal foundation in either the treaties or in a valid pre-existing
normative act; i.e. in a legal bases, which indicates who may adopt the act, what the act may contain, and what
procedure must be followed. Since the SEA, the Court has built up a large body of case law on the matter of
determination of the legal basis of Union acts, such as in Tobacco Advertising and Titanium Dioxide. The grants
of power to the Union are framed in terms of achieving certain objectives, which may lead it to adopt measures
affecting areas of regulation that are in principle reserved to the Member States.
4.4 Classification of competences
Articles 2 to 6 TFEU classify the various domains of activity of the Union into three categories , even though two
supplementary categories are excluded from the treaty because of their specific character – the coordination of
the Member States’ economic and employment policies, and the definition and implementation of a common
foreign and security policy:
4.4.1 Exclusive competence
The mark of an exclusive competence is that it is one which the Union is legally obliged to exercise, where
Member State action would render Union action ineffective. Thus, under Article 2(1) TFEU, “only the Union may
legislate and adopt legally binding acts”, though it may also authorise the Member States to adopt legislation
and other measures under the same provision. This list is meant to be exhaustive.
4.4.2 Shared competences
Most Union competences fall within the category described as “shared”; any competence not listed as being
exclusive or ancillary is presumptively shared in character under Article 4(1) TFEU; the list provided in Article
4(2) is only that of the principle areas of such competences. The meaning of “shared” is stated in Article 2(2) as
the Member States “exercis[ing] their competences to the extent that the Union has not exercised its
competence [or] has decided to cease exercising”.
4.4.3 Ancillary (or “complementary”) competences
Under Article 2(5) TFEU, the Union may “carry out actions to support, coordinate or supplement actions of the
Member States”. The exercise of an ancillary competence may not in itself lead to the harmonisation of
national provisions, though under the Tobacco Advertising judgement, it does not preclude harmonisation in
the name of the internal market.
4.4.4 Common Foreign and Security Policy (“CFSP”)
CFSP, under Article 24(1) TEU, is given separate treatment from other Union policies because the decision-
making procedures and legal instruments used in this policy area differ significantly from others. Though the
ECJ does not have general jurisdiction here, it can review two categories of measures in the domain of foreign
policy. The first is “restrictive measures against natural or legal persons”, adopted by the Council under the
CFSP. The second is Article 40 TEU, which is designed to ensure that CFSP measures do not encroach on the
competence conferred on the Union under the general regime.
, 5. Subsidiarity
Subsidiarity requires that public power be attributed to the level of government where it can most effectively
be exercised. Under Article 5(3) TEU, the principle of subsidiarity provides a test which is intended to act as a
brake on the exercise of Union competence. The substantive Treaty principle has been supplemented by a
protocol which lays down procedural requirements, including provisions that allow the national parliaments to
express their views on whether proposed legislation complies with this principle or not, the so-called “early
warning” mechanism.
5.1 The subsidiarity test
The test does not apply to Union actions in areas where it enjoys exclusive competence. The first condition for
Union action is the “necessity test”, testing whether the objectives of the proposed action cannot be
sufficiently achieved by the Member States. Under Article 2 of Protocol No. 2, the Union must perform “wide
consultations”, i.e. “take into account the regional and local dimension of the action envisaged”. The second
condition is that “by reason of the scale or effects of the proposed action, [the Union objectives] be better
achieved at Union level”.
5.2 Protocol No. 2: the “early warning mechanism”
In the first stage of the “early warning mechanism” from Protocol No. 2, the national parliaments receive draft
legislative acts as well as subsequent amended drafts. Next, the national parliaments have an eight-week
period in which to produce a “reasoned opinion”, which is sent to the Presidents of the EP, Council and the
Commission. These come in three varieties: the individual opinion, the collective opinion, and the special
legislative opinion.
5.2.1 Opinion of individual parliaments or chambers
The institutions are obliged to “take account of” the reasoned opinions issued by an individual national
parliament or chamber.
5.2.2 Collective opinion
A collective opinion can only be adopted by at least one-third of the votes (19 out of 56); the threshold is
lowered to a quarter of the votes (14) where the initiative falls within the area of FSJ. Where the number of
negative votes reaches the threshold, the draft legislation must be reviewed.
5.2.3 Special legislative opinion
The national parliaments may adopt a special legislative opinion only when they are examining a Commission
proposal under the ordinary legislative procedure; the threshold for adopting such an opinion is a simple
majority of the total votes available (29). Where a majority of the members of the EP or 55% of the members of
the Council reject the (amended) proposal for reasons of subsidiarity compliance, it is dead in the water.
5.3 Scope of the early warning system
The Early Warning Mechanism is subject to a number of important limitations. First, it only applies to legislation
excluding measures adopted by an innominate non-legislative procedure, as well as delegated and
implementing acts. Second, it is limited to the initial proposal and amended versions of it; it does not allow
parliaments to examine the different preparatory acts. Third, even where it applies, the mechanism provides
no formal guarantee that the initiator does not press on with its draft legislation. Fourth, the voting threshold
for the Council to block a proposal under the early warning mechanism is higher than the normal threshold
under the ordinary legislative procedure.
5.4 Judicial review of compliance with the subsidiarity test
An important question is whether the subsidiarity test applies in the context of the adoption of internal market
measures. In British American Tobacco, the Court ruled that, as the Union does not have exclusive competence
to regulate economic activity on the internal market, the principle of subsidiarity applies to measures in this
area, before examining “whether the objective of the proposed action could be better achieved at Union level”.
Where a measure seeks to achieve two interdependent objectives, the fact that one of these can be better
achieved at Member State level is insufficient to show a breach of the principle of subsidiarity.
6. Proportionality
The principle of proportionality is formulated in Article 5(4) TEU as meaning that “[the] content and form of
Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. Even though, this
principle must also be widely respected by the institutions, it does not benefit from the same early warning
mechanism.
