European Union Law Law 326

EU Law WEEK 3 COMPETENCE

EU Law Week 3 – Outline Introduction Exclusive Competence Shared Competence Supporting, Coordinating or Supplementary Action Separate Categories of Competence The “Flexibility” Clause The “Harmonization” Clause Subsidiarity

EU Law Article 1 TEU By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’ on which the Member States confer competences to attain objectives they have in common.

EU Law Introduction: General principle: EU only has competence conferred on it by EU Treaties  Attributed competence Theory of implied powers

EU Law Introduction What is the yield of the Lisbon Treaty?  Categories of competence

EU Law Exclusive Competence

EU Law Article 2 (1) TFEU When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

EU Law Principle of Exclusive Competence Only the EU can legislate and adopt legally binding acts

EU Law Areas of Exclusive Competence – Article 3(1) TFEU The Union shall have exclusive competence in the following areas: customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; common commercial policy

EU Law Conditional Exclusivity EU is accorded exclusive competence to make international agreements under conditions set by Article 3 (2) “when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope”

EU Law Shared Competence

EU Law Basic Principle – Article 2 (2) When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

EU Law Basic Principle – Pre-emption MS lose their competence when the EU has exercised its action MS action will be pre-empted only to the extent that EU has exercised its competence When the EU ceases to exercise its competence competence will revert to MS MS can continue to exercise power even if the EU has exercised its competence within these areas

EU Law Areas of Shared Competence internal market; social policy, for the aspects defined in this Treaty; economic, social and territorial cohesion; agriculture and fisheries, excluding the conservation of marine biological resources; environment; consumer protection; transport; trans-European networks; energy; area of freedom, security and justice; common safety concerns in public health matters, for the aspects defined in this Treaty

Supporting, Coordinating or Supplementary Action EU Law Supporting, Coordinating or Supplementary Action

EU Law Supporting, Coordinating or Supplementary Action Article 2 (5) In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

EU Law Basic Principles EU may pass legally binding acts but may not implement harmonization Member States have obligation to coordinate their policies in these matters

EU Law Areas of Supporting, Coordinating or Supplementary Action Article 6 protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; administrative cooperation

Separate Categories of Competence EU Law Separate Categories of Competence

EU Law Economic, Employment and Social Policy – Article 5 Coordination of economic policies within the Union The Union shall ensure this coordination and take initiatives when necessary Type of competence unclear

EU Law Common Foreign and Security Policy – Article 2 (4) Intergovernmental decision-making Use of different legal instruments Type of competence not specified

EU Law Flexibility Clause

EU Law Flexibility Clause Pre-Lisbon: Use of Article 308 Post-Lisbon: Article 352 - policies defined by Treaties except for CFSP - unanimity requirement

EU Law Harmonization Clause

EU Law Harmonization Clause – Article 114 Achievement of objectives set out in Article 26 Ordinary legislative procedure Use of Impact Assessment Report

EU Law Subsidiarity

EU Law Subsidiarity – Article 5 (3) – (4) TEU Distinction between existence of competence and use of competence Subsidiarity Protocol Role of Commission Role of National Parliaments