EU competences and the legislative process - L5 Flashcards
The Legislative Process
Inside the Union, by EU institutions (x change of the constitutional
framework, by the MSs = Treaty making)
Not original competence (like national Parliaments), but derived/attributed (von den „Herren der Verträge“)
Thus, the basic principles of any EU intern legislation (= secondary law): 1. Principle of attributed competence (Art. 5 Abs. 2 TEU)
* No Kompetenz-Kompetenz of the EU
2. Where does one find the competence?
(1) Kompetenzkatalog in Part One, Title II (Art. 2 -6 TFEU)
(2) Specific provision in Part Three of TFEU
Alternatively, the implied powers in Art. 352 TFEU - but needs unanimity!
The Division of (legislative)
competence (Union X MSs)
Art. 2 TFEU: types of EU competence
1/ exlusive (Art. 2 (1) + closed list in Art. 3 TFEU)
2/ shared (Art. 2 (2) + a list in Art. 4 TFEU)
3/ supporting (Art. 2 (5) + list in Art. 6 TFEU)
4/ Further noteworthly specific cases:
a) Coordination of economicy and employment policies of the MSs (Art. 2 (3) TFEU)
b) CFSP (Art. 2 (4) TFEU + Title V TEU)
Exclusive competence of the Union (Art. 3 TFEU)
Only the Union may legislate and adopt binding legal acts in those areas; the Member States may only act in such a case if they are authorised to do so by the Union or in order to implement legal acts of the Union.
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;(e)common commercial policy.
The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is
necessary to enable the Union to exercise its internal competence, or in so far as its
conclusion may affect common rules or alter their scope.
Codification of the implied powers doctrine (Case 1/76, AERT)
Shared Competence (Art. 4 (1) and (2) TFEU)
Both the Union and the Member States may … legislate and adopt binding acts. The
Member States shall exercise their competence if and insofar as the Union has not
exercised its competence.
(=> „federal pre-emption“, potentially compled with primacy)
1. The residual clause: if nothing else said and competence attributed, it will be shared –Art. 4 (1) TFEU
2. Examples (those listed)
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i)energy;
(j)area of freedom, security and justice
Supporing (Art. 2 (5) TFEU)
Art. 6 TFEU – carry out actions to support, coordinate, or supplement the actions of the Member States.
Only „support“, but no harmonisation:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
In practice then: mostly funds, capacity building, promotion, establishing the overal framework (e.g. the Bologna process & Erasmus)
Exercising the competence: the steps
1/ Is the Union competent in this area? (Can it adopt rulesthere?)
2/ Should the Union take action in the individual case?
Should it adopt the rules? (Exercise of existing competence)- principle of subsidiarity (Art. 5 (3) TEU)
- principle of proportionality (Art. 5 (4) TEU)
3/ What specific types of legal acts may the Union adopt in relation to the specific issue (what is the legal basis or Art. 296 (1) TFEU)?
Subsidiarity (Art. 5 (3) TEU)
Under the principle of subsidiarity, in areas which do not fall within its exclusivecompetence, the Union shall act only if and in so far as the objectives of theproposed action cannot be sufficiently achieved by the Member States, either atcentral level or at regional and local level, but can rather, by reason of the scale oreffects of the proposed action, be better achieved at Union level.
After the LT – involving national parliaments in the subsidiarity monitoring.- Protocols No 2 and 1 to the Treaties.
Reasoned opinion of the national parliaments (each 2 votes, where bi-cameral, split)
1/3 of votes = yellow card (think again, pls)
½ of votes = orange card, proposal must be reviewed and newly reasoned.
Proportionality (Art. 5 (4) TEU)
Aims x Means x Onerosity:
Under the principle of proportionality, the content and form ofUnion action shall not exceed what is necessary to achieve theobjectives of the Treaties.
Verhältnismäßigkeit = geeignet, erforderlich, angemessen.
Compliance with both principles is monitored in the legislativeprocess and must be explicitly justified.
It is subject to judicial review (Art. 263 TFEU) - however, the EUlegislator has a margin of appreciation, so in practice only an ‘abusecontrol’
But often a question of definition - what does the EU legislator wantto achieve?
The Legislative Process
(Default) Ordinary legislative procedure (Art. 294 TFEU)
Others - various ‘special legislative procedures’
Ordinary legislative procedure - standard procedure for most matters since Lisbon. Key features:
- Monopoly of initiative Commission= Right of withdrawal at any time- Equal rights of Parliament and Council. In case of disagreement, conciliation procedure (committee) between Council and Parliament.
- Qualified majority (or unanimity in Council), simple or absolute majority in Parliament
- Quorum depending on the stage of the procedure/action
N.B.: In EU law, the name of the act (sources!) does not determine the procedure (orauthor) and vice-versa („a regulation“ can be adopted by ordinary legislativeprocudure, but also by Commission action along)
Duty to State Reasons
For each legislative act - Art. 296 (2) TFEU Reference to
the proposals, initiatives, recommendations, opinions …
(the legislative ‘history’) provided for in the Treaties - in
the recitals
(e.g. Directive 2004/38 or Regulation 2016/679)
Function:
a) Ex-ante self-regulation for the institution
b) Ex-post judicial review - obligation to state reasons is
an essential formal requirement within the meaning of
Art. 263 (2) TFEU (=> action for annulment).
Example: Art. 114 TFEU –
Harmonising the Internal Market
Art. 114 (1) … The European Parliament and the
Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the
approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the establishment and
functioning of the internal market. So, can any rules enabling that aim be harmonized?
Case C-376/98, Deutschland/EP and Council(the ashtrays, again)
Germany: Art. 114 TFEU as legal basis for such a ban? A legal act
must actually contribute to the completion of the internal market.
Instead of promoting trade in tobacco and the freedom to provide
services in this area, the directive almost completely eliminates
these freedoms. The advertising ban, for example, makes it
virtually impossible to introduce new products and market new
products on the tobacco market, thereby paralysing trade
between Member States.
What is the competence here? Establishing the Internal Market
by closing it down in certain sectors (but for the benefit of other
goods?)
… the measures … are intended to improve the conditions for the
establishment and functioning of the internal market. To interpret that article as granting the Community legislature a general power to regulate the internal market would not only be contrary to the wording of those
provisions but would also be incompatible with the principle laid down in Article 3b of the EC Treaty (now Article 5 EC) that the powers of the
Community are based on conferral.
Moreover, an act adopted on the basis of Article 100a of the EC Treaty must actually have the purpose of improving the conditions for the establishment and functioning of the internal market. If the mere finding of differences between national provisions and the abstract risk of interference with
fundamental freedoms or possible distortions of competition arising
therefrom were sufficient to justify the choice of Article 100a as a legal basis, judicial review of the choice of legal basis could be rendered ineffective. …
… It must therefore be examined whether the directive
actually contributes to the elimination of obstacles to the
free movement of goods and the freedom to provide services as well as distortions of competition. … No.
… It is therefore necessary to examine whether the
Directive actually contributes to the elimination of
appreciable distortions of competition. … No.
Errr, the Directive rather serves to promote human health, but that is not the main purpose of Art. 114.
= The Directive is annulled in its entirety.
(Attributed power it is …)
