week 1: union competences Flashcards
(16 cards)
What is meant by the “principle of conferral” in the context of EU legislative competences?
○ The principle of conferral (Article 5(2) TEU) states that the Union can only act within the limits of the competences conferred upon it by the Member States in the Treaties.
○ Any competence not conferred on the EU remains with the Member States.
It is the foundation for the EU’s distribution of powers, ensuring that the EU cannot legislate outside the areas assigned to it by primary law.
Article 5 TFEU:
* 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
- Under the principle of conferral, 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. Competences not conferred upon the Union in the Treaties remain with the Member States.*
soft and strict principle of conferral
Strict principle of conferral:
would deny Union power to autonomously interpret its competences
- Not used bc serious practical issues □ Would need consent of all national parliaments of every MS for every legislative bill - IOs solve by insisting interpretation of international treaties must be in line w clear intentions of MS
Soft principle of conferral:
allows for teleological interpretation (purpose of rule)
- can partly constitute small amendment of original rule - potential method of incremental change - Mostly used CJEU has accepted almost all teleological interpretations of Union Competences by Union legislator □ Working Time Directive - based on provision within Title X social policy allowed Union to encourage improvements espc. within working environment as regards health and safety of workers - Would entitle union to adopt legislation on general organisation of working time ◊ UK contested this teleological reading : claimed no thematic link to health and safety and Union legislator acted Ultra Vires ◊ Court backed Union
Court interprets union legislation teleologically
According to the Treaties, name the three main categories of EU competences, and briefly explain the basic difference among them.
The three main categories (as set out especially in Articles 2–6 TFEU) are:
-
Exclusive competences
(Article 3 TFEU):
Only the EU may legislate and adopt legally binding acts;
Member States may do so themselves only if empowered by the EU or to implement EU measures
(e.g. customs union, common commercial policy).
- **Shared competences **
(Article 4 TFEU):
Both the EU and the Member States can legislate,
but Member States exercise their competence only to the extent that the EU has not exercised (or has chosen to cease exercising) its competence
(e.g. internal market, environment).
-
Supporting (or “complementary”) competences
(Articles 5–6 TFEU):
The EU may take measures to support, coordinate, or supplement Member States’ policies,
but it cannot harmonize national laws in those areas
(e.g. culture, tourism).
Which Article in the TFEU provides the EU with a residual (or “flexibility”) competence and in what type of situation may it be used?
Article 352 TFEU contains the EU’s residual competence (sometimes called the “flexibility clause”).
○ It can be used if action at EU level is necessary to attain one of the EU’s objectives, but no specific Treaty article confers the legislative power for that action.
- Sometimes it turns out that legislative action is necessary to achieve EU’s goals but TFEU doesn’t provide specific legislative competence to do so
○ However, Article 352 cannot be used to extend the EU’s powers “beyond the general framework of the Treaties” (as clarified by case law such as Opinion 2/94).
- In other words for major changes Treaties must be amended
§ TFEU Article 352 : *If action by the union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act on a proposal from the Commission after obtaining the consent of the European Parliament*
Briefly define the “teleological interpretation” of EU competences. Why is it relevant to understanding the scope of the EU’s powers?
○ Teleological interpretation looks at the aims and objectives of the EU (as stated in the Treaties) to interpret the scope of EU competences.
○ It is relevant because the Court of Justice often interprets Treaty provisions in light of their broader purpose (e.g., the internal market objective), which can broaden or clarify how a given competence is exercised.
This method partly explains how implied powers (in external relations, for instance) have been recognized.
soft principle of conferral
what is internal market (briefly)
EU ‘internal market’’ aims at establishing free movement of persons, goods, services and capital b/w EU MS -> fundamental freedoms
allows individuals to buy and sell goods across borders of NL, France, Italy, Poland, etc. w/o having to pay border duties
Allows EU citizens to work in another MS w/o being discriminated against
○ If laws in MS diverge free movement not possible
laws in relation to free movement need to be harmonised (made equal) to allow this free movement
TFEU Article 26: provides aim of functioning of internal market:
1. The Union shall adopt measures w aim of est. or ensuring the functioning of the internal market in accordance w the relevant provisions of the treaties
The internal market shall comprise an area w/o internal frontiers in which the free movement of goods, services, persons and capital is ensured in accordance w the provisions of the Treaties
○ TFEU Article 114 authorises EU to enact legislative acts to approximate (harmonise) national laws if these acts ''Have as their object the establishment and functioning of the internal market''
Article 114:
Save when otherwise provided in the Treaties, the following provisions shall apply for the achievement of objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance w the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by the law, regulation or administrative action in MS which have as their objective the establishment and functioning of internal market
What is Article 114 TFEU about, and why is it often described as providing a “general” or “horizontal” EU legislative competence?
○ Article 114 TFEU empowers the EU legislature to adopt measures that aim to harmonize national laws where divergences create obstacles to the functioning of the internal market.
○ It is called “general” or “horizontal” because it is not restricted to one sector (like agriculture or transport), but can be invoked for any area where differing national rules hamper the internal market.
However, it still requires a clear link to removing barriers or avoiding distortions of competition within the internal market.
□ Article 114: *Save when otherwise provided in the Treaties, the following provisions shall apply for the achievement of objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance w the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by the law, regulation or administrative action in MS which have as their objective the establishment and functioning of internal market*
Limitations on TFEU Article 114 (Tobacco)
Legislative competence under TFEU Article 114 not unlimited
In Tobacco Advertising case, Court of Justice of the European Union (CJEU) ruled TFEU Article 114 can only be applied under following conditions:
1. Legal act must aim to harmonise national laws 2. Disparities b/w national laws gives rise to obstacles in trade or distortions in competition
- EU law must contribute to elimination of obstacles
Look up Article 3 TFEU and list two specific policy areas in which the EU holds exclusive competence. Then look up Article 4 TFEU and list two areas in which the EU and the Member States
Examples from Article 3 TFEU (exclusive):
- The customs union
- The common commercial policy
- (Other examples:
- monetary policy for Eurozone states,
- conservation of marine biological resources under the Common Fisheries Policy.)
Examples from Article 4 TFEU (shared):
- The internal market
- The environment
- (Others may include:
- transport,
- energy,
- consumer protection,
How does the Tobacco Advertising case (Case C-376/98, Germany v. Parliament and Council) clarify the limits of Article 114 TFEU?
In Tobacco Advertising, the Court of Justice annulled an EU directive on tobacco advertising and sponsorship because part of it went beyond removing internal market barriers.
The Court held that Article 114 TFEU can be used only if (1) the measure genuinely contributes to removing obstacles to trade or distortions of competition and (2) the measure actually helps achieve the functioning of the internal market.
It established a stricter scrutiny to prevent Article 114 TFEU from being used as a blanket “general welfare” competence
In your own words, explain why shared competences can sometimes lead to complex questions about when the EU or a Member State has the “right to regulate” in a given field.
In shared-competence areas, both levels can legislate. Once the EU has exercised its competence and adopted harmonizing measures, Member States are generally prevented from acting contrary to that legislation.
- Union and MS may legislate, not at same time (TFEU Art. 2(2))
This can create legal uncertainty if it is not clear whether the EU measure fully occupies the field or whether there is still room for national rules.
It underscores the need to determine whether the EU’s legislation is intended to be exhaustive or leaves margin for national regulation.
Which two principles complement the principle of conferral and further constrain how the EU may exercise its competences?
(Hint: see Article 5(1) and 5(3)–(4) TEU.)
The principle of subsidiarity:
The EU should act only if and insofar as the objectives of a proposed action cannot be sufficiently achieved by Member States acting individually.
The principle of proportionality:
The content and form of EU action should not exceed what is necessary to achieve the objectives of the Treaties.
-> Both principles serve as additional checks to ensure that EU actions do not go beyond what is appropriate for EU-level legislation.
Under Article 352 TFEU (residual competence), what voting rule in the Council is needed to adopt a measure, and how has the Court of Justice limited the use of Article 352?
Adoption under Article 352 requires a unanimous vote in the Council, plus consent from the European Parliament.
The Court of Justice has ruled that Article 352 cannot be used if it would result in effectively amending the Treaties or introducing a “new policy field” beyond the scope of the existing Treaties (Opinion 2/94).
Thus, it is meant for filling gaps within the broad framework of existing Treaty objectives, not for re-writing or expanding EU powers in fundamental ways.
Consider a situation where the EU has legislated only partially in a field of shared competence. Are Member States free to legislate further in that field? Give a concise answer with reference to how the Court interprets partial EU harmonization.
Yes, they can, provided that the Member States’ legislation does not conflict with or undermine the aims of the existing EU harmonizing measure.
If the EU measure only partially harmonizes certain aspects, Member States retain competence over the unharmonized aspects.
The Court checks whether additional national legislation disrupts the internal market objective (e.g., if it reintroduces obstacles that the partial EU legislation aimed to remove). If it does not, the national rules can stand.
Which Treaty article confers competence to the EU to enact law in the field of environment? How does this illustrate that many EU competences are “sector-specific” rather than purely general?
Article 192 TFEU is the principal Treaty basis for environmental policy.
It shows that the Treaties grant the EU competence in distinct areas (environment, agriculture, energy, etc.), setting out objectives and procedures relevant to each.
While horizontal competences like Article 114 TFEU exist, much of the EU’s legislative power is spelled out in sector-specific provisions such as Article 192 TFEU for the environment.
Article 192:
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
Article 4(2) TFEU lists several areas in which the EU and Member States share competence. Pick one of these areas and outline briefly how it might raise tensions between uniformity (wanted by the EU) and diversity (preserved by Member States).
○ Consumer protection is a shared competence under Article 4(2)(f).
Uniformity considerations: The EU might enact directives or regulations to ensure consumers across all Member States enjoy a common high level of protection, enhancing cross-border trade confidence.
Diversity considerations:
Some Member States historically have stricter or more culturally embedded rules (e.g., about advertising, sales practices). They may fear losing their higher standards or unique legal traditions if an EU measure demands uniformity
