P2; CH1: The system of competences

Question 1

What is a competence?

Answer 1

An area in which institutions adopt both binding and non-binding measures

Question 2

How the Lisbon Treaty acted towards competences

Answer 2

It provided a sort of constitution (limits and powers) [artt. 2 -> 7]

1. Offered greater clarity on the division of competences
2. Formalized the conferral of new competences
3. Protected National Sovereignty clarifying EU margins of intervention
4. Instituted the PRINCIPLE OF REVERSIBILITY (option to return Union competences to Nations, Nations are less conflicting + transititional and dynamic competences division)

Question 3

How are competences divided in EU law?

Answer 3

EXCLUSIVE: Solely to EU or MS if authorized

SHARED: Both can intervene following the PRINCIPLES of SUBSIDIARITY and PRE-EMPTION

SUPPLEMENTARY/PARALLEL: UE only has to support and coordinate national policies

Question 4

What does the PRINCIPLE OF ATTRIBUTION say?

Answer 4

It says that National Competences are the RULE, while EU Competences cant be presumed and has to be attributed by the Treaties and reconstructed by case law

Question 5

Centre of Gravity Doctrine and WHY

Answer 5

Every act has to find a legal basis in a Treaty Provision.

BECAUSE doing so:
- justifies and gives constitutional importance to the act
- determines a clear division of competences between EU and MS
- preserves the prerogatives and the rules of the institution concerned

Question 6

What’s the normative link between EU competences and objectives?

Answer 6

Objectives serve as a parameter to the legitimacy and legality of the act (invalid objective, invalid act)

However, pursuing a legitimate objective doesn’t justify exercising not conferred competences

Question 7

How is Flexibility in the system of competences innovative?

Answer 7

Thanks to flexibility:
1) It is possible to enact a limited extension of competences through certain special revision procedures requiring unanimity in the Council
2) The Passerelle Clause

Question 8

What’s the FLEXIBILITY CLAUSE?

Answer 8

(ART. 352 TFEU)
It’s a clause that intervenes in unforeseen issues of EU law.

It plays a residual role and is difficult to enact:
[The Council acts Unanimously, with EP prior approval, whilst the Commission draws attention on National Parliaments]

Can be applied only if:
a) the act pursues objectives set in the Treaties
b) the Treaties haven’t defined the necessary mean of action.

Question 9

What’s the Passerelle Clause?

Answer 9

It governs the passages:
a) from UNANIMITY to QUALIFIED MAJORITY
b) from SPECIAL LEGISLATIVE PROCEDURE to ORDINARY ONE
in specific fields.

Question 10

Exclusive Competences

Answer 10

(Art.3 TFEU)
Implies that the power to legislate and adopt binding acts belongs only to the Union

Question 11

In which areas do the Exclusive Competences apply?

Answer 11

1) Customs Unions
2) Definition of internal market competition rules
3) Monetary Policy for countries that adopted the Euro
4) Conservation of marine biological resources
5) Common commercial policy

Question 12

How can Nations intervene in the Exclusive Competences framework?

Answer 12

Only if authorized or if internal implementations are needed

Question 13

Why some matters are part of the exclusive competences and some not?

Answer 13

Because the one in the exclusive competence list are there since arbitrary interventions of Members States would frustrate or impede Union’s intervention

Question 14

Shared Competences

Answer 14

(Art.4 TFEU)
Both EU and MS are allowed to intervene, but theu have to do so following principles of:
- pre-emption
- subsidiarity

Question 14

In which areas do the Shared Competences apply?

Answer 14

To all those areas where MS and EU have no exclusive competences. It is listed residually for matters such as but not limited to:
- internal market
- economic, social, territorial cohesion
- energy, transport, environment
- freedom, security, justice
…

Question 15

Principle of Subsidiarity

Answer 15

• POSSIBILITY to enjoy a certain degree of autonomy at different levels of political authority
• RESPONSABILITY TO LEGISLATE, so that if MS can’t achieve the objectives of the given competence, EU shall intervene

Question 16

How can EU proceed to intervene in case of MS’s inerzia?

Answer 16

Commission acts doing the COMPARATIVE ASSESSMENT in 4 phases:

(EP and Council validate Commission’s proposal and ensure the respect of proportionality and subsidiarity)

1) Commission outlines its general intentions in green or white papers
2) Commission’s approach is verified by both stakeholder consultations and impact assessment process
3) NECESSITY TEST: comparative efficiency analysis of the two scenarios (eu or ms)
4) If the EU scenario prevails, Commission produces an EXPLANATORY MEMORANDUM stating the reasons. Recitals.

Question 17

What is the Pre-emption principle?

Answer 17

Regulatory mechanism for shared competences.

If UNION occupied the field, even partially - Union prevails and MS have to follow Common rules, Doctrine of Primacy and the duty of loyal cooperation

If UNION didn’t occupy the field yet or stopped occupying it - MS prevail

Question 18

Exceptions to the pre-emption principle

Answer 18

AFTER LISBON REFORM:
1-Environmental, Climate change and Social policy matters CANNOT BE emptied because occupied minimally by EU

2-In research, tech development, space, cooperation and humanitarian aid the PRE EMPTION PRINCIPLE doesn’t apply

Question 19

Supplementary Competences

Answer 19

(Art. 5 TFEU)
Economic, Employment and Social policies

They are in the MS realm but EU may support or accompany national measures

Question 20

What are economic policies based on?

Answer 20

economic policies are based on eurozone coordination, stability and growth in an open-market free competition framework

Question 21

Economic policy insights

Answer 21

guarda il libro troppa roba

Question 22

Horizontal limits to conferred competences

Answer 22

RESPECT OF MS NATIONAL IDENTITIES
EU cannot intervene in the political, constitutional and fundamental structures or functions + MS must decide on their security, freedom and justice matters

EQUALITY OF MEMBER STATES
(Secondary Law and Commission)

PRINCIPLE OF LOYAL COOPERATION
(both vertically and horizontally - ms/ms/eu)

PROPORTIONALITY
Content and form of action must be proportionate and necessary coherent + when there’s a choice, eu shall find the least onerous one
(result: directives should be preferred over regulations)

Question 23

External competences

Answer 23

(Art.47 TEU)
EU has legal personality, so:
- has Treaty-making capacity
- may enter International agreements EXCLUSIVELY or ALONGSIDE MEMBER STATES (Mixed Agreements)

PRINCIPLE OF PARALLELISM
Generally, internal exclusive competences and external exclusive competences tend to overlap, since to enhance one you need to have the other to avoid to affect the european framework

Question 24

What does the legal personality of EU imply ?

Answer 24

EU can enter International Agreements with third countries/organizations

EU enjoys international subjectivity

EU enjoys personality within the MS framework as a DISTINCT BODY

EU enjoys Ius Missionis: capable of receiving diplomatic missions from other international law entities

Question 25

What is the EEAS

Answer 25

European External Action Service

Question 26

What is the Authorization Instrument and why is it useful?

Answer 26

Authorization Instrument removes the limits imposed on MS when EU exercise its exclusive power to conclude international agreements, authorizing MS to act on the Union’s behalf

(e.g. SC, G8 …)

Question 27

Mixed Agreements

Answer 27

When UNION and MS act jointly, side-by-side in the field of external relations

Since Shared Competences are BROAD, it is easy for MS to claim the necessity of mixed agreements

They are based on mutual cooperation in the context of multilateralism

SLOWNESS PROBLEM: due to ratification