competences and legislation Flashcards
principle of conferral
The EU may act only of expressly authorised to do so, Article 5 (2) TEU.
It is NOT empowered to define it’s areas of competence (no ‘competence-competence’)
implied powers
Fédération Charbonnière:
→ In addition to the competences explicitly conferred on the EU by the Member States, this doctrine gives the EU the competences by virtue of the factual context or the nature
of the matter, especially when they are a necessary supplement to an expressly conferred competence.
Flexibility Clause Art. 352 TFEU
infers the existence of a legislative competences in areas otherwise not provided for by referring to the objectives that the EU aspires to reach Art. 3 TEU.
→ such legislation requires unanimity in Council and consent of Parliament!
→ substantive limit: explicit exclusion of harmonisation measuers for areas where it is prohibited of the relevant policy chapter.
→ creation of novel, fully-feldged sui generis regulatory regimes that go byeond harmonising eg. European company (SE), IP regimes for EU trademarks before the Lisbon Treaty.
duty to state reasons (Art. 296 TFEU)
explain motivation for the act in terms of nature and content and show necessity and proportionality in the form it a was adopted. Pre-requisite and yardstick for justiciability.
principle of proportionality
Applies to all competences. It has to be suitable, necessary and appropriate.
principle of subsidiarity
Only applies for shared competences! The EU can only act if it promises better result than if individual measures were taken.
subsidiary control procedure
Protocol 2:
national parliaments can raise concerns with substantiated opinions, why a proposal infringes the principle
* Yellow card: 1/3 (1/4 in AFSJ) → mandatory review, but can be maintained
* Orange card: 1/2 →possibility of simplified rejection of the draft by Parliament and or Council
* no red card: no right of veto!
Privileged standing for national parliaments and the Committee of the Regions to bring an action for annulment for an infringement of the subsidiarity principle.
harmonisation clause Art. 114 TFEU
method of alignment and approximation where the implementation of EU objectives require uniform conditions across MS borders.
positive integration
adopting secondary law to eliminate disruption
negative integration
ECJ declares a national provision incompatible, and by erga omnes effect all the other similar laws in other MS also become incompatible
limited possibility for MS unilateral action after hamronisation
- enactment of new deviating rules: only protection of environment and working environment.
- maintance of divergent rules:
→ must be based on new scientific findings and explain why necessary.
→ admissibility examined by Commission, and if justified then EU act should generally be revised accordingly, if not then infringement procedure.
ordinary legislative procedure
- Commission proposes act: monopoly of initiative!
→ may be requested by Council Parliament or European Citizen’s Initiative (not binding, must only consider it and provide reasons if rejected)
→ limited veto: withdrawal before first reading in Council or exceptionally also later - First reading in Parliament: accept or amend the text with simple majority
- First reading in Council:
→ it can approve it with qualified majority, then it is adopted,
→ if they refuse it and amend it then they give it back to Parliament. - Second reading in Parliament:
→ can either approve the amendments or let time expire then it is also adopted
→ or can propose amendments (absolute majority)
→ or can reject it then it is over (absolute majority) - Second reading in Council:
→ can agree on it or propose further amendments (if amendement diassproved by Commission then with unanimity!, if agrees then only qualified majority) - Conciliation Committee: if agreement, have to be voted on by both to be adopted, and if no agreement or not passed by vote, then finally rejected.
enhanced cooperation
- minimum 9 MS must initiate it: flexible integration Art. 20. TEU
- limited scope of territorial application, only binding for the participationg MS.
- must be submitted to full Council first, only as a last resort if no majority and request must be submitted to Commission.
- in legislative process all allowed to take part but only participating MS have voting rights.
- not Eurozone, not Schengen!! → eg. Rome III Regulation (divorce and family values), Unitary Patent Regulation
- cannot encroach on exclusive right of the Union!!
regulation
→ general abstract, directly applicable without need of transposition into national law
→ has direct effect: also horizontal!
directive
→ adresses may only be MS, cannot created immediate obligation to individuals
→ leaves discretion to MS on how to to transpose it, often set minimum standards
→ binding only as regards to the objectives
decisions
→ binding, directly applicable with typically specific adressees: individual-concrete scope
→ capable of having direct effect both vertically and horizontally if they are sufficiently clear to be litigated (justiciability)
→ typically used by executive branch
ordinary revision procedure
— proposal may be submitted by MS, EP or Commission
— forwarded to European Council which decides by simple majority to pursue it or not
— drafting is by Convention: representatives of EP, Commission, representatives of MS, national heads of states)
— adopted by consensus, not time limit for ratification
if only minor amendment: no Convention needed if EP approves it, and representatives of MS governments prepare the draft themselves.
general simplified revision procedure
only Part Three of the TFEU
→ same right of proposal, but European Council can adopt it alone with consultating the Commission and EP.
→ can only enter into force if all MS ratify it!
specific simplified revision procedure
no uniform procedure!
→ decisions of common defense policy, accession to ECHR, extend human EU citizen rights, amendment to system of own resources
→ still all require ratification by the MS
general passarelle clause
- qualified majority in Council that are still unanimity or CFSP (except defence and military)
- application of ordinary legislative procedure instead of special→ excluded: system of own resources, MFF, flexibility clause of Art. 352, voting rules in rule of law procedure (Art. 7 TEU)→ right of initiative of European Council
→ adoption by European Council with unanimity and approval by EP, MS have veto right
specific passarelle clause
- specific passarelle clause→ same application as general but in specific areas (MFF, social and environmental law)
→ fewer conditions (no consent of EP only consultation) and no MS veto right
→ cannot change primary law!
