European Public Law

European Public Law

European Union competences

Principle of conferral: Art 5 TEU

1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

• Each act must identify its legal basis
• Union's Competences: The treaties do not enumerate them in a single list
• Each policy area contains a provision on which Union legislation can be based
• Part 3 of TFEU is dedicated to Union policies and internal actions
• Principle of conferral puts very strong limits to the EU when exercising its power and coordination
• Basis of this principle: an attempt to delimit and contain the Union competences to avoid the excessive power of the EU
• The EU has the competence in a limited number of matters

Teleological interpretation

- Soft principle of conferral

- Otherwise a strict principle (international law logic) of conferral would indeed deny the Union the power to autonomously interpret its competences, causing serious practical problems as every legislative bill would need to be approved by the national parliaments.

- Teleological interpretation asks what is the purpose (telos) of a rule.

- Legal solution to a social problem not anticipated when the text was drafted.

- Example of teleological interpretation: Working Time Directive.

General competence

- The EU enjoys two general competences under Art 114 and Art 352 TFEU. Both competences cut horizontally through the sectoral policies and have been used to develop policies not expressly mentioned in the treaties.

- Harmonisation clause (Art 114 TFEU)

• The EU is entitled to adopt measures for the approximation of national laws which have as their objective the establishment and functioning of the internal market.
• Not a policy area, but an objective
• Very wide interpretation
• Case: Spain vs Council - Prevent heterogeneous development of national laws
• Attempts to limit this wide interpretation
• Case: Germany v. Parliament and Council - Harmonization power could only be used to promote the internal market
• First, a European law must harmonize national laws
• Second, a simple disparity in national laws is not enough to trigger the Union general competences
• Third, Union legislation must actually contribute to the elimination of obstacles

- Flexibility clause, the residual competences (Art. 352 TFEU)

• Art 352 constitutes the most general competence within the treaties
• The Union shall adopt the appropriate measures if its action 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

- Application procedure

• Special legislative procedure: adopted by the Council unanimously on a proposal from the Commission and after obtaining the consent of the Parliament

- Limits

• Measures based on this article shall not entail harmonization of MS laws or regulations in cases where Treaties exclude such harmonization
• Prohibition to apply in the field of the Common Foreign and Security Policy
• Implicit limitations Art 48 TEU: the clause cannot be applied to extend the Union competences defined by the Treaties (Court of Justice 1996)
• It cannot amend the founding treaties without following the procedure which it provides for that purpose

Implied powers theory

• Theory developed by the Court of Justice
• The Union has competences for the adoption of certain measures, even in the absence of an express allocation of competences
• Court of Justice 31 March 1971: Community competence for the stipulation of international agreements in the absence of an express attribution by the treaty

Division of competences

Art. 2 TFEU

• It distinguishes the various categories of the Union competences
• It lists areas included in each category

Four categories of competences

Exclusive competences

Only the Union may legislate and adopt legally binding acts, the MS may act only if so empowered by the Union or for the implementation of Union acts.

Areas:

• Previously, TEC did not specify the nature of the competences
• The Court of Justice classified the nature of the competence according to the objective pursued
• The competence was qualified as exclusive if it was instrumental in safeguarding a global interest of the community (e.g., common commercial policy, conservation of biological resources)

Now Art. 3 TFEU

• Custom union
• Establishing of competition rules necessary for the common market
• Monetary policy for the MS whose currency is the euro
• Conservation of marine and biological resources under the common fisheries policy
• Common commercial policies

Shared competences

Both the Union and the MS may legislate and adopt acts.

There are two different interpretations:

1. If a treaty does not state otherwise, the competence is shared. Both the Union and the MS are entitled to legislate on these competences.
2. Some say that the state and the EU cannot act in the same matter. According to a different interpretation, they can but only related.

• Principle of the prevalence of Union intervention: The EU and the MS are prohibited to act at the same time, the MS shall exercise their competences to the extent that the Union has not exercised its competence
• The MS retain full power of action as long as the inactivity of the Union lasts
• If the Union decides to cease exercising its competence, the MS regain their power of action

Areas:

• Art. 4.1 TFEU residual competence: areas not included in the treaty
• Art. 4.2 TFEU exemplary list of shared competences, it establishes that the EU institutions exercise their shared competences in some principal areas, social policies, economics, social and territory cohesion, consumer protection, common safety, public health, environment...

Coordinating competences (Art. 2.3, Art 5 TFEU)

Art. 5 not well defined by the treaty.

• The EU has a competence to provide for the MS to exercise their competences in a coordinated manner, the EU power is limited to the coordination of actions of the MS
• The adoption of guidelines and initiatives to ensure coordination (in order to harmonize the differentiations between the legislation in the member states)

Areas:

• Economy policy, employment policy, social policy

Complementary competences (Art. 2.5, Art 6 TFEU)

• Actions to support, supplement and coordinate the action of the MS
• Union action does not preclude the exercise of the MS powers of action
• Prohibition of harmonization: the EU legislation must not modify existing national laws

Areas:

• Protection and improvement of human health, industry, culture, tourism, education, vocational training, youth and sport, civil protection and administrative cooperation

Principles for the exercise of the competences

Art 5 of TEU: the use of Union competences is governed by the principles of subsidiarity and proportionality.

• The principle of conferral is the general principle in order to distribute the competences.
• The principle of subsidiarity and the principle of proportionality regulate the exercise of the competences.

Principle of subsidiarity

Attempt to guarantee the proximity between the decisions and the people addressed by these decisions.

Art. 5.3 TEU: Under the principle of subsidiarity, in areas which do not fall within its exclusive competences, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the MS, either at central level or at regional and local level, but can rather, by reason of the scale of effects of the proposed action, be better achieved at Union level.

Application

• Residual: areas which do not fall within exclusive competence of the Union
• Impossibility for the MS to sufficiently achieve the objectives
• Suitability of the Union action to better achieve the objective with respect to actions of the MS
• The action of the MS is privileged if it is able to pursue the objectives at a sufficient level, the action of the Union intervenes only if it is suitable to guarantee the pursuit of the objectives at a higher level
• Ratio: proximity principle

Tools to monitor compliance with the principle

• Control by national Parliaments (Protocol 2)
• Action for annulment before the Court of Justice by the MS ex Art. 263 TFEU
• Other instruments: wide consultations by the Commission, motivation of any draft legislative act, submission of annual report on compliance with the principle

Principle of proportionality (Art. 5.4 TEU)

Under the principle of proportionality, the content and form of the Union actions shall not exceed what is necessary to achieve the objectives of the Treaties.

Applications

• All areas falling within the Union competences, even exclusive
• Regulate the procedures for exercising the Union powers of action in two respects
• Form: choice of the type of legislative act to be adopted
• Content: relationship between means and objectives, so that the action must not exceed what is strictly necessary for the achievement of the proposed objective

Tools to monitor compliance with the principle (Protocol 2)

• Transmission to the national parliaments of the draft legislative act
• Action for annulment before the Court of Justice
• Other instruments: wide consultations by the Commission, motivation of any draft legislative act, submission of an annual report on compliance with the principle

Union external competences

Definition and general characteristics

• Ability to conclude international agreements with third states or international organizations
• Legitimacy to acquire the status of member of an international organization
• Consequences of its legal personality, which configures it as an autonomous legal entity with respect to the MS also in international context
• Subject to the principle of conferral, it is not general and unlimited, but circumscribed to the areas assigned by the Treaties

Art. 216.1 TFEU categories of external competence:

• External competence normatively foreseen
• Parallel preventive competence
• Parallel successive competence

European Union institutions

European Parliament

Democratic state and principle of majority. The decisions in a democratic system are made with the majority principles. The order in which institutions are ruled in the constitution is important, for example in the European democracies the parliament is usually the first mentioned because it represents the sovereignty of the people. On the other hand, in monarchies, the king is usually the first mentioned.

In the case of the EU, the first institution that you can find in the text of the treaties is the European Parliament, so at least from a formal and symbolic point of view, the parliament is the center of the EU institutions, but in reality, it is different.

• The European Parliament is regulated by:
  • Article 14 of the TEU, section 1
  • Some deliberations adopted by the same parliament
• The European Parliament in Strasbourg and Brussels (considered the capital city of the EU where the majority of EU institutions work)

The parliament in its current composition/position is the result of a very long and important evolution: at the beginning of the EU integration process, the parliament had a very different composition and a very limited function.

According to the first treaties - Paris and Rome - it was an advisory body that served the institutions of the EU community - council and commission. Originally it was named Assembly and was composed of the representatives of the national parliaments. Since 1976-1979 it is directly elected by the citizens.

Already at the beginning of the EU integration process, there were some differences between the Parliament and other international institutions:

1. The number of representatives: usually each member state is represented by the same number of representatives (ex. One for each member state). On the contrary, the parliament provided for a different composition. The small countries were represented by a smaller number of representatives, bigger more representatives.
2. MP direct elected by EU citizens. The founding treaties established a further revolution: in 1976 "Union Act" Election a direct election of EU parliament was introduced. 1979 first direct election.
3. Art 14 the parliament is composed by a maximum of 751 members including the president. They are assigned through the so-called "digressively proportional representation" (from 6 to 96 MP), it is a compromise that can be considered between two different principles.

Two methods of distribution

1. Principle of equal distribution, federal: each state would have the same number of MP (is used in international organizations)
2. Democratic principle/ democratic distribution: distribution of seats proportional for citizens of each country (The EU method is proportional but has limits..)

Each country elects its MP. Each country decides how to elect the member of parliament. The UEA provided only general principles to respect. The election system has to be based on a proportional representation.

Electoral systems

1. Proportional: heterogeneous society, multi-party systems, more coherent representation of the willing of the people.
2. Majoritarian: stable and clear majority that can sustain government

Each state also decides the election date according to the decisions made by the European institutions concerning the period of elections. Term of MP 5 years.

Italy

• Electoral threshold of 4%
• Parties make lists of candidates to be elected
• Seats allocated to each party in proportion to the number of votes the party receives
• The voter might write the name of one to three chosen candidates
• 5 electoral districts with multiple members: north-west, north-east, center, south, big island

Status

• Statute for MP
• Free and independent
• Vote on an individual and personal basis
• Not to be bound by any instructions
• Form political groups
• Appropriate salary

Structure: The President

It is common practice to alternate the president even though there is a term of 5 years, in reality, it is 2 and-a-half years.

• First part: representative of the minority party
• Second part: European majority

Elected by the parliament itself with an absolute majority (50%+1 of the members of the parliament) - simple majority: majority of votes (people present)

Duties

• Direct the parliamentary activities
• Chairs plenary sittings
• Represent the parliaments
• Responsible for the security and the inviolability of the premises of the parliament
• He must act fairly and impartially

Internal parliamentary organs

• The bureau (president and vice presidents) - financial and economical internal administration
• Conference of presidents: president and presidents (chairs) of different political groups
• Committees: standing committees (circa 50 MP, specialized bodies that work on specific policies and prepare the works of the plenary regarding specific topics) and special committees
• Political groups (at least 25 MP elected in at least 1/4 of member states)

Structure: The Plenary

• The formal decision-making organ of the EP
• It meets for a week every month
• It acts by a majority of the votes cast
• Some exceptions (majority of the component MP, double majority)

Powers

- Paris treaty: supervisory powers

- Rome treaty: advisory and supervisory power (P. to be consulted on Commission proposals before their adoption by the council)

Nowadays: Art 14 TEU: "The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission."

Four type of powers

Legislative powers

• Shared with the Council and exercised jointly with it
• Introduced by the Maastricht Treaty and thanks to the amendments of the Amsterdam treaty and Lisbon treaty the parliament has a stronger influence in the exercise of this function. The parliament and council have more or less the same strength now. They exercise these powers through the approval of the legislative act
• It is not entitled to formally propose bills.

• Ordinary legislative procedure: joint adoption by the EP and the council
• Special legislative procedure: stronger position of the council and consultation role of the parliament, there are different kinds of special legislative procedures: consent procedure and consultation procedure

Budgetary powers

• The approval of the budget of the European Union
• Each year the parliament and the council adopt the budget, decide the revenues and expenditure of the European Union
• Since 1970 and 1975 budget treaties. Originally it had limited competences, only non-compulsory expenditure
• Nowadays it enjoys the same powers of the council

Supervisory powers

• Ability to control the activities of other European institutions and can be exercised through a number of different instruments:
• Power to debate: review and discuss activity records of the Commission, European council, ECB
• Power to question (and receive answers)