Lieke Spruit (B7) EU Decision Making & Judicial Remedies
LECTURE 1
The EU and its Member States: division of competences
What happens if EU institutions overstep their competences?
The Community Method, the Open Method of Coordination and governance issues
A closer look at diferent legislative procedures – examples for:
o The ordinary legislative procedure
o The consultation procedure
o The consent procedure
THE EU AND ITS MEMBER STATES: DIVISION OF COMPETENCES
EU institutions may only act where the TEU and the TFEU have given them the power to
act, i.e. where the EU has competence.
“Action” includes both:
Regulatory action – enacting binding and non-binding law
Non-regulatory action – including redistributive action (disbursement of the
budget), coordination, guidance, etc.
Action taken by the EU without an appropriate legal basis is unlawful and can be annulled
by the CJEU.
THE PRINCIPLE OF CONFERRAL
TEU Art. 5 (2) on the principle of conferral:
“Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member
States”
WHAT IS IF THE UNION OVERSTEPS ITS COMPETENCES?
An action for annulment can be brought before the CJEU on the basis of Articles 263 &
264 TFEU.
Example: Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419
(Tobacco Advertising) Lecture 5
If the EU has competence, then the Member States cannot act contrary to it – as
held by the CJEU in Case 22/70 Commission v Council, paragraphs 30 – 31.
The competences of the Union are envisaged to be evolving dynamic, capable of
expansion and reaction.
The issue of competence creep, i.e. gradual loss or transfer of competences from
the Member States to the EU Intro to EU Law
Tools helping to prevent the EU from going beyond its competences: subsidiarity
and proportionality Intro to EU Law
,Lieke Spruit (B7) EU Decision Making & Judicial Remedies
TFEU ART. 2 – UNION COMPETENCES
(1) When the Treaties confer on the Union exclusive competence in a specific area, only
the Union may legislate and adopt legally binding acts, the Member States being able to
do so themselves only if so empowered by the Union or for the implementation of Union
acts.
(2) When the Treaties confer on the Union a competence shared with the Member States
in a specific area, the Union and the Member States may legislate and adopt legally
binding acts in that area.
The Member States shall exercise their competence to the extent that the Union has not
exercised its competence. The Member States shall again exercise their competences to
the extent that the Union has decided to cease exercising its competence.
(5) In certain areas under the conditions laid down in the Treaties, the Union shall have
competence to carry out action to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.”
No harmonization of Member States’ laws or regulations in these areas!
TFEU ART. 4 (3) – RESEARCH, TECHNOLOGICAL DEVELOPMENT AND SPACE
In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being
prevented from exercising theirs.
TFEU ART. 4 (4) – DEVELOPMENT COOPERATION & HUMANITARIAN AID
In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise
of that competence shall not result in Member States being prevented from exercising
theirs.
,Lieke Spruit (B7) EU Decision Making & Judicial Remedies
, Lieke Spruit (B7) EU Decision Making & Judicial Remedies
TFEU ART. 2 (4) – COMMON FOREIGN & SECURITY POLICY
The Union shall have competence, in accordance with the provisions of the TEU, to define
and implement a common foreign and security policy, including the progressive framing
of a common defence policy.
SHARED COMPETENCES – CHALLENGES
Sometimes it is unclear whether it is the Union or the Member States which
should act in a particular area
The degree of sharing can difer according to the subject matter
o E.g. Internal market: as soon as the Union acts, it assumes exclusive power
to act and Member States cannot act contrary to it.
If the Union chooses not to act, then Member States retain the power to
act free movement of goods and the freedom to provide services were
extended to areas formally reserved for exclusive competence of the
Member States – e.g. health care, pensions, etc.
THE COMMUNITY METHOD, THE OPEN METHOD OF COORDINATION
AND GOVERNANCE ISSUES
THE COMMUNITY METHOD (SLIDE 18 + 29)
The Community Method is the usual decision-making method in the EU, characterized by:
1. The European Commission’s role in legislative initiative
2. The Council’s role in decision-making
3. Involvement of the European Parliament in decision-making at diferent degrees
depending on the decision-making procedure:
o Ordinary legislative procedure
o Consent procedure
o Consultation procedure (as a special legislative procedure)
4. The role of the CJEU in providing judicial remedies
THE COMMUNITY METHOD – CRITICISM
Non-transparent decision-making in the EU institutions
Limited democratic input and limited possibilities for citizens to participate in the
decision-making process
Tensions between the intergovernmental and supranational elements leading to
“decision traps”
search for alternative methods of governance for the EU
THE OPEN METHOD OF COORDINATION (OMC) (SLIDE 30+)
Formally introduced in 2000 as an EU method of soft governance used in areas of:
Shared competence between the EU and the Member States
Coordinating, complementing, supplementing EU competence
Does not result in binding EU legislation
Aims to spread best practice and achieve convergence towards EU goals
THE OMC – IN WHAT FIELDS IS IT USED?
Some examples:
LECTURE 1
The EU and its Member States: division of competences
What happens if EU institutions overstep their competences?
The Community Method, the Open Method of Coordination and governance issues
A closer look at diferent legislative procedures – examples for:
o The ordinary legislative procedure
o The consultation procedure
o The consent procedure
THE EU AND ITS MEMBER STATES: DIVISION OF COMPETENCES
EU institutions may only act where the TEU and the TFEU have given them the power to
act, i.e. where the EU has competence.
“Action” includes both:
Regulatory action – enacting binding and non-binding law
Non-regulatory action – including redistributive action (disbursement of the
budget), coordination, guidance, etc.
Action taken by the EU without an appropriate legal basis is unlawful and can be annulled
by the CJEU.
THE PRINCIPLE OF CONFERRAL
TEU Art. 5 (2) on the principle of conferral:
“Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member
States”
WHAT IS IF THE UNION OVERSTEPS ITS COMPETENCES?
An action for annulment can be brought before the CJEU on the basis of Articles 263 &
264 TFEU.
Example: Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419
(Tobacco Advertising) Lecture 5
If the EU has competence, then the Member States cannot act contrary to it – as
held by the CJEU in Case 22/70 Commission v Council, paragraphs 30 – 31.
The competences of the Union are envisaged to be evolving dynamic, capable of
expansion and reaction.
The issue of competence creep, i.e. gradual loss or transfer of competences from
the Member States to the EU Intro to EU Law
Tools helping to prevent the EU from going beyond its competences: subsidiarity
and proportionality Intro to EU Law
,Lieke Spruit (B7) EU Decision Making & Judicial Remedies
TFEU ART. 2 – UNION COMPETENCES
(1) When the Treaties confer on the Union exclusive competence in a specific area, only
the Union may legislate and adopt legally binding acts, the Member States being able to
do so themselves only if so empowered by the Union or for the implementation of Union
acts.
(2) When the Treaties confer on the Union a competence shared with the Member States
in a specific area, the Union and the Member States may legislate and adopt legally
binding acts in that area.
The Member States shall exercise their competence to the extent that the Union has not
exercised its competence. The Member States shall again exercise their competences to
the extent that the Union has decided to cease exercising its competence.
(5) In certain areas under the conditions laid down in the Treaties, the Union shall have
competence to carry out action to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.”
No harmonization of Member States’ laws or regulations in these areas!
TFEU ART. 4 (3) – RESEARCH, TECHNOLOGICAL DEVELOPMENT AND SPACE
In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being
prevented from exercising theirs.
TFEU ART. 4 (4) – DEVELOPMENT COOPERATION & HUMANITARIAN AID
In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise
of that competence shall not result in Member States being prevented from exercising
theirs.
,Lieke Spruit (B7) EU Decision Making & Judicial Remedies
, Lieke Spruit (B7) EU Decision Making & Judicial Remedies
TFEU ART. 2 (4) – COMMON FOREIGN & SECURITY POLICY
The Union shall have competence, in accordance with the provisions of the TEU, to define
and implement a common foreign and security policy, including the progressive framing
of a common defence policy.
SHARED COMPETENCES – CHALLENGES
Sometimes it is unclear whether it is the Union or the Member States which
should act in a particular area
The degree of sharing can difer according to the subject matter
o E.g. Internal market: as soon as the Union acts, it assumes exclusive power
to act and Member States cannot act contrary to it.
If the Union chooses not to act, then Member States retain the power to
act free movement of goods and the freedom to provide services were
extended to areas formally reserved for exclusive competence of the
Member States – e.g. health care, pensions, etc.
THE COMMUNITY METHOD, THE OPEN METHOD OF COORDINATION
AND GOVERNANCE ISSUES
THE COMMUNITY METHOD (SLIDE 18 + 29)
The Community Method is the usual decision-making method in the EU, characterized by:
1. The European Commission’s role in legislative initiative
2. The Council’s role in decision-making
3. Involvement of the European Parliament in decision-making at diferent degrees
depending on the decision-making procedure:
o Ordinary legislative procedure
o Consent procedure
o Consultation procedure (as a special legislative procedure)
4. The role of the CJEU in providing judicial remedies
THE COMMUNITY METHOD – CRITICISM
Non-transparent decision-making in the EU institutions
Limited democratic input and limited possibilities for citizens to participate in the
decision-making process
Tensions between the intergovernmental and supranational elements leading to
“decision traps”
search for alternative methods of governance for the EU
THE OPEN METHOD OF COORDINATION (OMC) (SLIDE 30+)
Formally introduced in 2000 as an EU method of soft governance used in areas of:
Shared competence between the EU and the Member States
Coordinating, complementing, supplementing EU competence
Does not result in binding EU legislation
Aims to spread best practice and achieve convergence towards EU goals
THE OMC – IN WHAT FIELDS IS IT USED?
Some examples:
