1. European Union Law
Law 326

2. EU Law
WEEK 3 COMPETENCE

3. 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

4. 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.

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

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

7. EU Law
Exclusive Competence

8. 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.

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

10. 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

11. 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”

12. EU Law
Shared Competence

13. 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.

14. 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

15. 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

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

17. 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.

18. 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

19. 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

20. Separate Categories of Competence
EU Law
Separate Categories of Competence

21. 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

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

23. EU Law
Flexibility Clause

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

25. EU Law
Harmonization Clause

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

27. EU Law
Subsidiarity

28. 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