Chapter 7 Flashcards
What is the principle of conferral (Art.5 TEU)?
It means that the EU is not a sovereign state but that its competencies are conferred to it by its MS in the European Treaties. They attribute legislative competences for each and every Union activity in a respective Treaty title.
Which are the three legal developments which undermined the principle of conferral?
1) The use of teleological interpretation: leads the Union competences to ‘spill over’ into areas which were not originally in the Union’s competences sphere
2) Union’s general competences: not confined to specific areas but various policy titles (Art.114 and Art.352 TFEU)
3) Doctrine of implied powers: powers not explicitly conferred by the Treaties to the EU
What is Art.114 TFEU about?
It is about the internal market competences. It establishes that the Union can enact laws for the realisation and functioning of the internal market
Why is the Tobacco Advertising case so important?
Because it was the first time in which EU law (a directive) was annulled because it was beyond the Union’s competences.
Constitutional limits were posed on the Union’s internal market power during this case.
What is Art.352 TFEU about? What are its limits?
It is about the residual competences, which is the most general union competence within the Treaties. It may be used to adopt legislation or executive acts in two ways:
1) If a policy title in which a specific competence was not able to achieve the specific objective
2) To develop a policy area which has no specific title within the Treaties
Limits:
1) It is prohibited in policy areas in which the Union is limited to complementary competences
2) It is prohibited in the area of CFSP
Describe the five categories of Union competences. Which article regulates them?
Art.2 TFEU distinguishes them
1) Exclusive competences: Art.3 TFEU in which the EU enjoys the monopoly of action in this category and MS are excluded (customs union, monetary policy, common commercial policy)
2) Shared competences: Art.4 TFEU in which competences are shared by the Union and the MS but they shouldn’t be exercised by both at the same time (it happens anyway)
3) Coordinating competences: Art.5 TFEU allows the Union to set guidelines to achieve some degree of harmonisation between the works of the MS
4) Complementary competences: a residual category which entails no harmonisation of MS but the Union is only asked to complement national policies without affecting existing or future legislation but only trimming the Union’s power
5) Common Foreign and Security Policy: it is a separate competence
What is the difference between an ordinary and a special legislative procedure?
- Ordinary procedure: the EP and the CM act as co-legislators because the prerogative to initiate bills is the Commission’s
- Special procedure: there is one ‘authoring institution’ between the EP and the CM which adopts the bill and the other merely gives its consent, or its consultation (EP) depending on the situation
Special procedures do not have a universal definition and are established in each specific legal basis
Which articles define the ordinary legislative procedure? Explain in details the process
Art.295 and Art.297 TFEU contain the seven stages of the ordinary legislative procedure.
1) Proposal stage
2) First reading
3) Second reading
4) Third reading
5) Conciliation stage
6) Signing
7) Publishing
(Look at the notes for the details)
What are informal trilogues? Are they a problem?
It is when the formal practice is revised by informal constitutional practices.
Informal meetings to create bridges between institutions and reach agreements in the first readings or to prepare the work for the Conciliation Committee.
They have been extremely successful but they are a threat to the principle of representative democracy on which the Union is founded as they shorten the formal legislative procedure reaching informal agreements by small representative groups.
Which articles regulate the special legislative procedure?
Art.289(2) TFEU refers to the EP as the authoring institution and the Council is just going to approve the bill or not with its consent
Art.289(2) TFEU refers also to the Council as the authoring institution and the EP is just going to give its consent or also the consultation procedure (a formality)
What is the principle of subsidiarity? When was it expressed?
It means giving an assistance of subordinate or secondary importance, it could encourage larger associations to assist smaller ones and discourage assigning to higher association what a lesser organisation can do.
It was expressed in the SEA in 1986 and now it has become a general constitutional principle in Art.5(3) TEU
Can the principle of subsidiarity be applied to all competences?
No, it can be applied only to Union’s non-exclusive competences in the case in which
- national insufficiency test: the objective cannot be achieved satisfactorily by the MS
- comparative efficiency test: the state shouldn’t act unless it better achieves the objective of the proposed actions
What Protocol no.2 is about? What it gave rise to?
It is about the involvement of national parliaments in the legislative procedure.
It gave rise to the warning system with the
- Yellow card mechanism: within 8 weeks of the forwarding of the bill, the national parliament should produce an opinion stating (they need 1/3 of negative votes) why the draft does not comply with or there is a breach of the principle of subsidiarity . The Commission must review it but it is only a warning, so they can decide to amend, maintain or withdraw the draft anyway.
- Orange card mechanism: triggered when a majority of negative votes is allocated to the Commission and in this case there is the need to give a justification to the national parliaments for maintaining the draft. The justification must be forwarded to the Union legislator, if one of the two chambers finds that the draft doesn’t comply with the principle of subsidiarity, the proposal is rejected.
