1. EU system of competences

2. Definition of competence
The power to adopt normative acts. A legislative competence is the material field within which the EU is entitled to legislate
It applies to the Union as such and to the institutions.
Vertical distribution of competences: the distribution of legislative powers between the Union and the Member States
Horizontal distribution of competences: the distribution of decision- making functions among the EU institutions (institutional balance)

3. Basic issues about competences
Existence of the competence :
Principle of conferral (or attribution): The EU powers are not inherent, as in a State, they must be conferred by the Treaties. In the Treaty it is possible to find the thematic competences of the Union
Criteria for the exercise of the competence:
Principle of subsidiarity
Principle of proportionality

4. Legal basis
The legal basis is the provision, in each policy area in the Treaty, on which Union legislation can be based.
Every normative act must expressly indicate, among the reasons for its adoption, the legal basis (the Treaty provision upon which the competence is based)

5. Expansion of EU powers Teleological interpretation
Harmonization competence – art. 114 TFEU
Residual competence – art. 352 TFEU
Implied external powers – art. 216 TFEU

6. Teleological interpretation
The Court of justice (ECJ) favors a teleological interpretation (to look for the purpose of a legal rule – Treaties or legislation) in order to maximize the useful effect (effet utile) of EU legislation and Treaty norms. (Casagrande case, 1974).

7. Harmonization competence – art. 114 TFEU
Adoption of measures for the approximation of national laws, which have as their object the establishment and functioning of the internal market.
Leading case: Tobacco advertising (2000).
Limits: 1) the EU legislation must harmonize national laws, 2) the disparity in national legislations must give rise to obstacles in trade and distortions in competition, 3) the Union legislation must contribute to the elimination of obstacles and distortions.

8. The residual competence – art. 352 TFEU
General competence of the EU, comparable to the «necessary and proper clause» of the US Constitution (article I, section 8, clause 18).
Art. 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».

9. …Residual competence - use
It can be used in two ways:
1. in a policy where the Union already has a competence, but this is insufficient to achieve a specific objective.
2. to develop a new policy area, for which there is no competence in the Treaties. This is the case of the environmental policy prior to the Single European Act. It has been considered as a simplified «small» amendment procedure.

10. …residual competence - limits
1. art. 352: measures based on this article shall not entail harmonization of Member States’ laws or regulations in cases where the Treaties exclude such harmonization
2. art. 352 cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy
3. the Court: art. 352 cannot be used for measures that constitute big changes to the constitutional identity of the EU (Opinion 2/94 on accession of the EU to the ECHR).

11. Doctrine of implied external powers
Expansion of the Communities/Union treaty-making powers through the interpretation of Treaty norms by the Court of Justice.
Origin: the EEC Treaty limited the Community’s power to enter into international agreements with third countries to trade and association agreements

12. …implied external powers – the ERTA case (1971)
Teleological interpretation of Treaty norms on the transport policy. Theory of useful effect of the internal competence.
After the adoption of internal measures, the treaty power becomes exclusive, due to the effect of pre-emption (when the agreement is likely to affect existing common rules or alter their scope).

13. Parallelism of competences
Subsequent cases conformed that from the fact that the Union has an internal power derives for the Court an implied external power to conclude international agreements for all matters falling within the scope of the Union’s internal competence.
Opinion 1/76 (1977) on a laying-up fund for vessels in the Rhine and Moselle’s fluvial basins, to be established through an agreement with Switzerland

14. … parallelism codification – art. 216 TFEU
«The Union may conclude an agreement with one or more third countries or international organizations where the treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope».

15. Categories of competences – 1. exclusive
Art. 2, par. 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».

16. …exclusive competences
Art. 3, par. 1, TFEU:
Customs union
Establishment of the competition rules necessary for the functioning of the internal market
Monetary policy for the Member States whose currency is the euro
Conservation of marine biological resources
Common commercial policy

17. … exclusive competences
Art. 3, par. 2, TFEU: exclusive external competences
When the conclusion of an agreement is provided for in a legislative act of the Union (Opinion 2/94 on WTO agreements)
When it is necessary to enable the Union to exercise its internal competence (Opinion 1/76)
In so far as the conclusion of the agreement (by the Member States) may affect common rules or alter their scope (ERTA case)

18. Shared competences
Art. 2, par. 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»

19. …shared competences – art. 4 TFEU
Shared competences are the ordinary competences of the Union.
They can be described as a divided field. The Member States are allowed to legislate only in the part of the field that is not occupied by EU legislation (pre-emptive effect of EU legislation)

20. Parallel competences – art. 4, par. 3 and 4
Two shared competences do not have a pre-emptive effect when exercised by the Union:
Research, technological development and space
Development cooperation and humanitarian aid
Both the Union and the MS can have their own policies in these areas

21. Competences to support, coordinate or supplement (complementary competences)
Art. 2, par. 5, TFEU: «In certain areas and under the conditions laid down in the Treaties, the Union shall have the competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonization of Member States’ laws or regulations»

22. … complementary competences – art. 6 TFEU
No harmonization – no pre-emptive effect
Health
Industry
Culture
Tourism
Education, youth and sport
Civil protection
Administrative cooperation

23. Coordinating competences – art. 5
Competences that fall outside of the main categories:
Economic policy
Employment policy
Social policy
These are policies of the MS, where the EU only has a power of coordination

24. Areas of cooperation (intergovernmental)
Art. 2, par. 4:
«The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy».

25. Principles for the exercise of competences
Subsidiarity and proportionality

26. Subsidiarity – art. 5 TEU
«Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level».
National insufficienty test
Comparative efficiency test

27. … subsidiarity – Protocol 2
Duty to provide reasons with regard to the principles of subsidiarity and proportionality
Involvement of national parliaments
Role of the Committee of the Regions and the Court of Justice

28. Principle of proportionality
Art. 5, par. 4, TEU
«Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties».