Competences & Conferral

Article 5 TEU (1) - (2)

• Principle of Conferral

• "EU shall act only within the limits of the competences conferred upon it by the Member States"

Purpose of the principle of conferral

• EU action must be within Treaty-conferred powers and aim to attain Treaty objectives

• Protect state sovereignty

• Prevent competence/Mission creep (gradual expansion of EU powers)

Competences

• Powers granted to the EU in specific policy areas

• Definitive list introduced by the Lisbon Treaty

• Aiming to preserve national sovereignity

Exclusive Competences

• Art 3 TFEU

• Only the EU may legislate and Member States act only if empowered

Ex, Customs union, Competition rules for internal market, Monetary policy (Eurozone), common commercial policy.

Shared Competences

• Art 4 TFEU

• When both the EU and Member States may legislate; in dispute EU law always prevails.

  Ex, Internal market, Environment, Consumer protection, Transport, Energy

Coordinating / Supporting Competence

• Art 6 TFEU

• When the EU can only supplement/support and coordinate the actions of Member States.

  Ex, Culture, Tourism, Education and sport, Health protection, Civil protection

Mechanisms that extend the scope of EU competence

• Even exclusive National competence areas must still comply with EU law.

• Where there is conflict in shared competences, EU law must prevail.

Mechanisms that restrict the scope of EU

• Procedural obligations on EU institutions imposing constraints on their actions

• Proportionality

• Subsidiarity

Proportionality

• The idea that content and form of EU action shall not exceed what is necessary to achieve the objectives of the Treaties

• A balancing act, aimed to asses if a measure was necessary and suitable to reach the objective

Subsidiarity

• Art 5(3) TEU

• The principle ensures that decisions are taken at the most local level possible

• The EU shall only act if objectives of measures cannot sufficiently be achieved by Member states. (nationaly, regionaly, or by local authorities)

• Effort against democratisation

Flexibility Clause

• Art 352 TFEU

• Even when there are no conferred powers EU can act on this basis. As long as they prove the measure must be adopted to reach its objective.

Internal Market

• Art 114 TFEU

• Approximation of laws for internal market functioning

• Broad and frequently litigated

• Flexible legal basis

Emergency Law

• Art 122 TFEU

• Used during Eurozone crisis and COVID-19 pandemic

• Criticised for enabling competence creep and bypassing European Parliament

Legal Basis

• Article in treaties which confer legislative competences or any measures on the Union

• What really constrains the action of the EU

EU must always identify what provisions in treaties give it power to act

• What kinds of instruments can be adopted

• What procedures should be followed

• Any other specification on enacting legislation in the given area.

• Regulated by CJEU which establishes criteria

Doctrine of Implied Powers

• Implied existence of any powers needed to exercise its officially conferred power

• Criteria is wether its ‘necessary’