competences + legislation Flashcards
principle of conferral
the EU may only act when expressly authorized to do so - art 5(2) TEU
no competence-competence: it’s not empowered to define its areas of competence
types of competences
TFEU
Arts 2(1), 3 - exclusive
Arts 2(2), 4 - shared
Arts 2(3), 2(5), 5, 6 - coordinating, supporting, supplement
+ Arts 2(4) TFEU and 21 ff TEU - CFSP
legal basis
Art 2(6) - the scope and arrangements should be determined by the provisions of the treaties related to the area
= chapter on a particular area allows one to identify the concrete legal basis for legislation in this area
exclusive competence
only the Union may legislate
- Art 2(1) TFEU, Art 3(1) TFEU
absolute blocking effect
exclusive EU competence - even in case of absence of legislation, MS are normally not allowed to act; however sometimes EU may delegate certain aspects of its competence to the MS
complementary competences
different areas in which the competences of the MS are never replaced or terminated by EU actions - EU and MS have parallel competences in the areas, and legally binding EU actions must be limited to complimentary or coordinating aspects (harmonizing = replacement of national provisions is excluded)
external competence and exclusivity
= Art 3(2)
exclusive competence for the conclusion of an international agreement in any area whenever
- its conclusion is provided for in a legislative act of the EU
- it is necessary to enable the EU to exercise its internal competences
- in so far as its conclusion may affect common rules or alter their scope
implied powers
Fédération Charbonnière
in addition to the competences explicitly conferred on the EU by the MS, this doctrine gives the EU the competences by virtue of the factual context or the nature of the matter, especially when they are necessary supplement to an expressly conferred competence
= recognised by the ECJ
Flexibility clause Art 352 TFEU
- infers existence of a legislative competence in areas not provided for in the treaties but which is necessary to attain objectives set out in the treaties
- requires unanimity of the Council and the Parliament
- the only substantive limit: harmonization measures for areas where harmonization is prohibited under provisions of the relevant policy chapter
- creation of novel, sui generis regulatory regimes (e.g. European company (SE), EU trademarks before Lisbon treaty)
harmonization clause art 114 TFEU
a method of alignment and approximation where the implementation of EU objectives require uniform conditions across MS borders.
proportionality
= applies to all competences
the content and form of action needs to be suitable, necessary and appropriate
Art 5(4) TEU
duty to state reasons
Art 296 TFEU, the acting institution is obliged to explain the motivation for the act in terms of nature and content and to demonstrate its necessity and proportionality
= a prerequisite for the judicial review by CJEU
subsidiarity
= only for shared competences
the EU legislator may only act if it promises better results than if individual measures are taken
Art 5(3) TEU
subsidiarity control mechanism protocol 2
= a control mechanism for the parliaments of the MS, since EU legislation that violates the principles restricts their legislative powers
it obliges the Commission to re-examine proposals against which a certain number of national parliaments have expressed concerns
yellow card - 1/3 of national parliaments raise concern - mandatory review, but can also be maintained if justified
orange card - 1/2 of national parliaments raise concern - possibility of a simplified rejection of the draft by parliament and/or council
*no red card - no veto
principle of legality
procedures for the adoption of an act (legal basis) have to be strictly followed, any formal omission might render the act invalid
legislation opposed to other legal acts
Art 289 (3) TFEU
legal acts adopted by a legislative procedure are legislative acts, other factors (type of act, institution) are not sufficient
positive integration
adopting secondary law to eliminate disruption
negative integration
barriers being removed
ECJ declares a national provision incompatible, and by erga omnes effect all the other similar laws in other MS also become incompatible
scopes of implementing acts and decisions
implementing acts: general and abstract scope
decisions: individual and concrete
standing for action for annulment by non-privileged applicants in case of legislation vs non-legislative measures
legislation: actions for annulment by non-privileged applicants are usually inadmissible because proving individual concern would be difficult
non-legislative acts: only have to substantiate direct concern
ordinary legislative procedure
PROPOSAL: commission presents a proposal to EP and Council (after extensive consultations with all interested parties)
(may be requested by Council, Parliament or Citizens - not binding)
1ST READING IN PARLIAMENT: accept or amend with simple majority
1ST READING IN COUNCIL: it can approve with qualified majority, then it’s adopted
if they make amendments, it goes back to the Parliament
2ND READING 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)
2ND READING COUNCIL:
can agree on it or propose further amendments (if amendment dissaproved by Commission then with unanimity!, if agrees then only qualified majority)
CONCILIATION COMMITTEE: an agreement has to be reached (if not - act not adopted)
- joint text not approved by Parliament and/or Council - act not adopted
joint text approved by Parliament and Council - act adopted
consent procedure
used for agreements with non-MS, accession of new MS and multi-annual financial framework regulation for EU budget
Parliament has to approve the proposal without the possibility to shape the act - no right to amend the proposal (veto)
consultation procedure
sensitive matters - social security, voting rights, consular protection of EU citizens, AFSJ (passports, family law), taxes
the Council alone adopts legislation based on the Commission’s proposal ONLY CONSULTING the Parliament
enhanced cooperation
Art 20 TEU
minimum 9 MS
only binding for the participating MS - limited territorial scope
a form of flexible integration that allows a coalition of willing MS to deepen integration among themselves in cerain areas
