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2-EuCh-04-Competences_V28_JB.graffle

Conferral of powers on the EU 1/8 Modified: Tue Feb 02 2010

Tobler Beglinger All rights reserved.

Competences of the EU

Topic:

The EU may only act within the framework of the competences given to it by the Member States through the Treaties.

Attribution of powers to the EU

The EU enjoys only the powers given to it, Art. 5(2) TEU. All competences not conferred upon the Union remain with the Member States, Arts. 4(1) and 5(2) TEU.

This implies that, fundamentally, all competences are vested with the Member States. But note: there is no negative catalogue of fields entirely excluded from EU law in the Treaties; compare

e.g. Kreil(2000). However, according to Art. 4(2) TEU, "national security remains the soleresponsibility of each Member State."

Ways of attributing competences to the EU

Exceptionally: implicit attribution

Recognition of the existence of certainpowers by the ECJ, though the fields/areasconcerned are not explicitly mentionedinthe Treaties, through an extensiveinterpretation of legal basis provisions.

See Chart 4/7

Normally: explicit attribution

The powers given to the EU are stated inthe Treaties, in legal basis provisions, whichexplicitly mention the fields/areasconcerned.

The scope of the legal basis provisions isdetermined by the ECJ through interpretionof the provisions; see Chapter 12.

Chart 7 | 1

The principle of conferral of powers, Arts. 3(6), 4, 5 and 13(2) TEU

Consequences

Action of the EU and of its institutions must remain within the limits of its powers, Arts. 3(6) and 13(2) TEU.Where this is not observed, it may be possible to bring an action for annulment before the ECJ, see Chart12/5.

Conferral of powers on the EU Chart 4 | 1


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Legal basis provisions 4/8 Modified: Tue Feb 02 2010



Topic:

Legal basis provisions are the tool for conferring competences upon the EU. A legal basis provision confers upon the

EU the power to act in a given area. Legal basis provisions may be found throughout the Treaties. They are eitherspecific or general.

Generally: special provisions prevail over general provisions:lex specialis derogat legi generali

If the choice is between a specific and a general legal basis provision, always use the former.

Legal basis provisions confer powers on the EU

The legal basis of an act is mentioned in the preamble.

Legal basis provisions Chart 4 | 4

Specific legal basis provisions General legal basis provisions

For specific policy areas Relate in a general way to the internal marketor to the objectives set out in the Treaties

Numerous such provisions inthe Treaties; e.g.:

Art. 157(3) TFEU (sex equality inemployment and occupation)

Art. 46 TFEU (free movement forworkers)

Art. 83(1) TFEU (criminal law)

Art. 168(4)-(6) TFEU (public health)

Note: Regarding the protection of human

health, only incentive measures arepossible as there is no competenceto harmonise, Art. 168(5) TFEU.

However, health protection may be aside issue in other contexts, Arts. 9,114(3) and 168(1) TFEU; Tobacco

Advertising(2000).

Art. 28(1) TEU, read in conjunction withArt. 31 TEU (Common Foreign and

Security Policy)

Art. 352 TFEU: only if noother legal basis provision isavailable

Art. 114 TFEU; see Chart 4/6

Art. 115 TFEU: derogation fromArt. 114 TFEU; see Chart 4/6

Only three:


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Content of legal basis provisions 5/8 Modified: Tue Feb 02 2010



Topic:

Legal basis provisions determine important issues such as the type of Union act which they may enable the creation of

and the procedure to be followed in adopting such an act.

Legal basis provisions determine a number of important issues concerning EU action:

The type of act that is made possible

See Chart 5/1

E.g.: Art. 153(2)(b) TFEU: directives only; Art. 352 TFEU: "measures" in a general

sense.

Rarely:The degree of harmonisation

See Chart 11/7

E.g. Art. 83(1) TFEU (criminal law): minimum

requirements; Art. 153(2)(b) TFEU (social law): minimumrequirements.

The procedure to be followed

See Chart 5/4

E.g.: Arts. 46 and 114 TFEU: ordinary legislative

(codecision) procedure; Art. 115 TFEU: consultation procedure.

The procedure is defined: Either directly, by describing it in the legal

basis provision (e.g. Art. 103 TFEU); Or indirectly, through reference to the name

of a procedure (e.g. Art. 114 TFEU, referringto "the ordinary legislative procedure",which is described in Art. 289(1) TFEU).

The field in which action by the EU ismade possible

See Chart 4/4

E.g.: Art. 115 TFEU: establishment and

functioning of the internal market; Art. 157(3) TFEU: sex equality in

employment and occupation.

Issues determined by legal basis provisions

Content of legal basis provisions Chart 4 | 5

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