Legislative powers: competences and procedures

Question 1

General competences

Answer 1

Arts 114 and 352 TFEU

Question 2

Teleological interpretation

Answer 2

Is a form of judicial interpretation used to find a solution to problems not anticipated ECJ upholds all teleological interpretations (minus Germany v EP & Council (Tobacco Advertising). EU has law to treat foreign EU citizens same as nationals thus teleo applied and competence spilled into educational matters (Casagrande).

Question 3

Article 114 TFEU

Answer 3

The harmonisation competence - it is general competence to approximate national laws for internal market. Unlimited scope potentially (Spain v Council [1995]) but G v EP & C (Tobacco Advertising) showed limits: 114 must harmonise laws, must be likely for divergent national laws, must eliminate movement obstacles.

Question 4

Article 352 TFEU

Answer 4

352 is a general competence to legislate where ‘necessary’: cannot harmonise MS laws nor use as basis for CFSP (codifying Kadi). Cannot be used for massive change (implied), shown in Opinion 2/94 where the EU could not accede to the ECHR under this competence.

Question 5

Four categories of competences

Answer 5

exclusive, shared, coordination, complementary (2 TEU).

Question 6

Exclusive competences

Answer 6

where the EU only may adopt binding acts. Came from Opinion 1/75 for Common Commercial Policy, now in 3 TFEU. Second found in Commission v UK. Now five areas in total.

Question 7

Shared competences

Answer 7

all polices unless otherwise stated. It is a divided field (Art 2(2) TFEU). There is automatic pre-emption of MS action where Union has acted. All found in Art 4 TFEU.

Question 8

Co-ordinatory policies

Answer 8

provide ‘arrangements’ for MS policies, found in Art 5 TFEU.

Question 9

Complementary policies

Answer 9

where the EU can act where the MS has not, in order to support MS’s (Art 6 TFEU).

Question 10

Article 289 TFEU

Answer 10

Distinguishes the ordinary and special procedure.

Question 11

Ordinary legislative procedure

Answer 11

EP and Council work as symmetrical co-legislators (joint adoption). There are 5 stages (Art 294): proposal by commission, Parl votes to accept/reject/amend, council accepts/rejects with reasons, Parl accepts/rejects/amends Council’s position, Council accepts/rejects, rejection leads to conciliation stage, equal number of Parl and Council members to create compromise (‘joint text’), Council& EP rejects/accepts for final say (both chambers must agree). It is then signed/published by the Commission.

Question 12

Informal trilogues

Answer 12

Informal trilogues are held during all stages to help with negotiations and are successful but not democratic. This bypasses using most members of EP and Council. It uses an equal number of people from each institution; normally 1, 2 or 3 from each institution.

Question 13

Special legislative procedure

Answer 13

institutional equality abandoned, with either EP or Council as dominant institution. When council is supreme, only consent is required from the other institution (which involves a veto).

Question 14

Subsidiarity

Answer 14

A positive and negative aspect: encourages large associations to help small ones and discourages delegation to higher associations what smaller ones can do.
Defined in Art 5 TEU: the union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States…. [or can] be better achieved at union level.

Question 15

Two subsidiarity tests

Answer 15

There are two tests: national insufficiency, where the objective cannot be achieved by a MS, and comparative efficiency, where EU and MS are compared for efficiency.

Question 16

Protocol (No 2)

Answer 16

Protocol (No 2) strengthens federal safeguards where MS’s can submit reasons why a bill does not comply with subsidiarity within 8 weeks of proposal. EU can maintain, amend, or withdraw it therein (Art 7(2)). A.k.a. the ‘yellow card’ mechanism.
Orange card mechanism exists where a majority of votes deemed a proposal a breach, bill will be withdrawn. Red card mechanism was rejected.

Question 17

Arbitrator on subsidiarity

Answer 17

The ECJ arbitrates on subsidiarity: UK v Council (Working Time) set test where the courts will ask whether the EU has unnecessarily restricted national autonomy. A low explanation threshold was given in Germany v Parl & Council (Deposit Guarantee Scheme) and confirmed in Netherlands v Council & EP [1998] where subsidiarity was ‘considered’.