Notes on EU Law & Institutions - Competences

Cluster 1: History, Institutions, and Competences of the EU
- Week 1: History of the EU and its Foundations
- Week 2: The EU’s Political Institutions I
- Week 3: The EU’s Political Institutions II
- Week 4: The Competences of the EU
- Week 5: Legal Instruments

The EU operates under the principle of conferral or principle of attributed powers.
- Significance: This principle is of the highest constitutional significance in the EU legal order.
- Action Scope: The EU possesses only those competences that have been conferred to it by the Treaties.
- Legal Basis Provision: A legal basis provision allows the EU to act in specific areas defined by the Treaties.

The Lisbon Treaty embeds two key principles for the exercise of EU competences:
- Principle of Subsidiarity: EU action is justified only when objectives cannot be sufficiently achieved at the national or local level.
- Principle of Proportionality: Limits the action of the EU to what is necessary to achieve the objectives of the Treaties.

A legal order is described as an aggregate of norms governing human behaviour, stating what actions are appropriate.
- Quoting Hans Kelsen: “A LEGAL ORDER is an aggregate or a plurality of general and individual norms that govern human behaviour.”

A legal order is typically linked to:
- A defined territorial state.
- A hierarchy of norms governing public power and its exercise.
- The relationship between citizens and the state, notably interactions involving executive power.

The concept of a legal order raises questions regarding its application within the EU framework.
It's noted that the EU does not have a constitution in the traditional sense, as it lacks a singular “European people” that delegates power to the EU.
Member States have transferred certain powers to an international legal body through treaties, with EU actions only as effective as allowed by Member State laws.

The EU lacks a definitive constitution; instead, legal order is derived from treaties.
The Court of Justice of the European Union (CJEU) acknowledges a European legal order that can set aside conflicting national rules, though member states remain 'masters of the treaties'.

TEU (Treaty on European Union):
- Establishes foundational principles and the institutional framework of the EU.
- Defines democracy, fundamental rights, and procedures for leaving the EU (e.g., Article 50 TEU relates to Brexit).
TFEU (Treaty on the Functioning of the European Union):
- Details EU functioning, economic policies, internal market, and provides the framework for EU laws.
- Article 114 TFEU regulates the harmonization of national laws.
- Article 101 TFEU prohibits anti-competitive agreements.
- Analogy: TEU as the EU’s 'constitution'; TFEU as practical rulebook detailing operational procedures.

Principle of conferral of competence: Only powers explicitly conferred by Treaties can be exercised (Art. 5(2) TEU).
Subsidiarity and proportionality principles: Guide how competences may be exercised (Art. 5(3) TEU).
Fundamental Rights: Ensurance of rights under EU law (Art. 6 TEU).
National Identity: Protected by the Treaties (Art. 4(2) TEU).

Legal basis provisions are essential for conferring competences on the EU, allowing it to act in specified areas.
Must always be outlined in the preamble of a legislative measure.

Ensures EU does not act beyond conferred powers, respecting the principle of conferral.
Provides procedural safeguards:
- Different decision-making procedures apply depending on the area of concern, ensuring institutional involvement based on the significance of the matter at hand.

Specific Legal Basis Provisions: Refer to specific policies as defined in respective articles (e.g., Articles on specific competences like criminal law).
General Legal Basis Provisions: Deal more broadly with objectives laid out in Treaties pertinent to internal market functions (e.g., Article 114 TFEU).

If EU law is in breach of Treaties, the CJEU can annul such legislation.
Actions for annulment must be initiated within two months of the adoption of the measure.
If annulled, the law is declared void, establishing the court's role in maintaining compliance with the Treaties.

In this case, Germany contested the EU Directive banning tobacco advertising, arguing the use of Art. 114 TFEU was inappropriate.
CJEU Decision: The court supported Germany's stance and annulled the Directive, emphasizing that measures adopted under Art. 114 must improve internal market conditions.

Exclusive Competences: Art. 3 TFEU defines fields exclusive to EU action.
Shared Competences: Art. 4 TFEU, where both Member States and the EU can act.
Supporting Competences: Art. 6 TFEU—EU can only support national actions.

The EU’s authority is limited to the explicit allocations within the Treaties.
National competences are reserved unless a specific competence is defined by the EU.

Subsidiarity: Only for areas of non-exclusive competence to ensure that decisions are made as closely to citizens as possible (Art. 5(3) TEU).
Proportionality: Relevant across all competences ensuring principles of limitation align with legislative intent (Art. 5(4) TEU).

Per Articles 5(3) and 12 TEU, national parliaments oversee compliance with subsidiarity principles through established protocols.
Yellow Card Procedure: National parliaments expressing concerns can trigger reassessment of proposals based on subsidiarity.
Orange Card Procedure: If a sufficient level of opposition is raised, the proposal may be blocked.

EU competencies are limited to those conferred by treaties.
Subsidiarity and proportionality govern how these competences can be exercised.