Probleem 4
Bronnen:
- Schütze – An Introduction to European Law – Chapters 2 and 3
- The ABC of European Union Law ERTA case
o Solidarity: p. 29
o Powers of the EU: p. 54-57
o Means: p. 98-108
o Legal acts: p. 111-117
- ERTA case
- Tobacco Advertising case
1. What are the competences of the EU?
Teleological interpretation
Art. 5(2) TEU states that the Union must act within the limits of the competences conferred upon it by the Member States.
This should be interpreted restrictively, to preserve the sovereign rights of the States by preserving the historical meaning
of the founding treaty. The teleological interpretation can also be used, this interpretation method looks behind the text
to get to know the purpose of the rule. This can cause a small amendment of the rule.
General Competences of the Union
There are two competences that do not belong to one specific policy area:
- Art. 114 TFEU: internal market competence (harmonization competence)
On the basis of this article, the Union is entitled to adopt measures for the approximation of national laws ‘which have
as their object the establishment and functioning of the internal market’. In the past the Union legislator has
employed an extremely wide reading of this general competence. However, in the Tobacco Advertising case the
question rose if the EU can ban the advertising and sponsorships of tobacco. The court said no:
1) There has to be harmonization of rules (there can’t be rules that have no implications on excising national rules).
2) The disparity must give rise to concrete obstacles to the internal market.
3) The legislation must contribute to the elimination of these obstacles.
- 352 TFEU: residual competence
This article constitutes the most general competence within the Treaties. This article says: if action by the Union
should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives
set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a
proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the
appropriate measures. There are a few limitations to this:
- Can’t entail harmonization of Member States’ laws or regulations in cases where the Treaties exclude such
harmonization.
- Can’t be used when deciding on foreign and security policy, these are designed to protect the constitutional
boundary drawn between the TEU and the TFEU.
- Can’t be used to constitute big changes to the constitutional identity of the European Union.
- Can’t serve as a basis for widening Union powers beyond the general framework of the Treaties.
Specific competences = more defined and easier to find the competence, these are formulated in a specific policy area.
2. What are the types of EU competences?
There are three categories of competences:
1. Exclusive competences (art. 3 TFEU) = In these policy areas, only the EU may legislate and adopt legally binding
facts, the Member States can only do this themselves when they are empowered by the EU or for the
implementation of Union acts (article 2(1) TFEU). The EU can also have exclusive external competences (art. 3(2)
TFEU), this is when it is about a legislate act of the Union, when it is necessary to exercise its internal competence
or to affect common rules or alter their scope. ERTA case said that where there is an internal competence, the
Union has the external competence to enter into international agreements relating to the matters (implied
power), this external competence must be exclusive. Art. 3(2) TFEU decides whether the EU has exclusive
competence. Art. 216(1) TFEU (codification of the ERTA case) also states that an international agreement can also
be formed where the Treaties provide so or when it is necessary in order to achieve one of the objectives in the
Treaties.
, ERTA case (implied power)
Facts: The European Road transport Agreement (ERTA) had been drafted to harmonize certain social aspects of international road
transport and it involved the Council and a few Member States as potential signatories. The negotiations were conducted without
formal involvement of the Union, so the Commission felt excluded from its role as Europe’s external broker. The Commission
brought the matter before the European Court, and stated that the Union competence under its transport policy included a
treaty-making power (and that this power had become exclusive after the adoption of Union (legislation))
Legal question: do the negotiations by the council constitute infringements of the articles 75, 228 and 235 EEC, with particular
regard to the division of powers between the commission and the council, and would the agreement need to be annulled?
Court: from the fact that the Union has an internal power, in this case the competence to adopt social provisions, the court thus
implied an external power to conclude international treatied for all matters falling within the scope of the Union’s internal
competence. The reasoning of the Court was based on the idea of a parallel treaty-making power running alongside internal
legislative power. The European Court here confirmed a doctrine according to which ‘treaty power is coexistensive with its
internal domestic powers’ and which thus ‘cuts across all areas of its internal domestic competence’.
2. Shared competences (art. 4 TFEU) = In these areas the EU can exercise competence first, but only with regard to
matters laid down in the relevant Union instrument and not to the entire policy area. In these competences the
Member State can still act when the EU does not act, but not when the EU has acted (art. 2(2) TFEU).
3. Coordinating competences (art. 6 TFEU) = The EU may give advice to the Member States and coordinate them. In
these competences the Member State are in any circumstance allowed to act.
4. Supporting/complementary competences (art. 6 TFEU) = The EU can support the Member States. This is mostly
done financially. In these competences the Member State are in any circumstance allowed to act.
3. What is the meaning of the principle of subsidiarity? (Only focus on this principle, not the other
two!)
Subsidiarity = a central authority should only perform those tasks which cannot be performed effectively at a more
immediate or local level. With the Maastricht Treaty from 1992, subsidiarity became a constitutional principle.
- Positive: It positively encourages “large associations” to assist smaller ones, where they need help.
- Negative: It negatively discourages “to assign to a greater and higher association what lesser and subordinate
organizations can do”. It is this dual character that has given the principle of subsidiarity its “Janus-like” character.
Subsidiarity is only to apply within the scope of the Union’s non-exclusive powers and thus confirms that the European
principle of subsidiarity is a principle of cooperative federalism. The treaty definition of subsidiarity builds on two tests:
1. National insufficiency test (absolute standard) = the union can only act where the objectives of the proposed
action could not be sufficiently achieved by the Member States.
2. Comparative efficiency test (relative standard) = the union should not act unless it can better achieve the
objectives of the proposed action.
1. Subsidiarity as a political safeguard
The Protocol aims to establish “a system of monitoring” the application of the principle. Each Union institution is called
upon to ensure constant respect for the principle of subsidiarity. This means in particular that they must forward draft
legislative acts to national parliaments. These draft legislative acts must “be justified” with regard to the principle of
subsidiarity and proportionality. Each national parliament may within eight weeks procedure a reasoned opinion stating
why it considers that a European legislative draft does not comply with the principle of subsidiarity. Each Parliament will
thereby have two votes.
- Yellow card-mechanism
Where the negative votes amount to one-third, the European Union draft must be reviewed. This is called the “yellow
card” mechanism, since the Union legislator may decide to maintain, amend or withdraw the draft. The yellow card
mechanism is slightly strengthened in relation to proposals under the ordinary legislative procedure: only a majority
of the votes allocated to the national parliaments will trigger it.
- Orange card-mechanism
Under the “orange card mechanism” the Commission’s justification for maintaining the proposal, as well as the
reasoned opinions of the national parliaments, will be submitted to the Union legislator. The Union legislator will have
to consider whether the proposal is compatible with the principle of subsidiarity.
Bronnen:
- Schütze – An Introduction to European Law – Chapters 2 and 3
- The ABC of European Union Law ERTA case
o Solidarity: p. 29
o Powers of the EU: p. 54-57
o Means: p. 98-108
o Legal acts: p. 111-117
- ERTA case
- Tobacco Advertising case
1. What are the competences of the EU?
Teleological interpretation
Art. 5(2) TEU states that the Union must act within the limits of the competences conferred upon it by the Member States.
This should be interpreted restrictively, to preserve the sovereign rights of the States by preserving the historical meaning
of the founding treaty. The teleological interpretation can also be used, this interpretation method looks behind the text
to get to know the purpose of the rule. This can cause a small amendment of the rule.
General Competences of the Union
There are two competences that do not belong to one specific policy area:
- Art. 114 TFEU: internal market competence (harmonization competence)
On the basis of this article, the Union is entitled to adopt measures for the approximation of national laws ‘which have
as their object the establishment and functioning of the internal market’. In the past the Union legislator has
employed an extremely wide reading of this general competence. However, in the Tobacco Advertising case the
question rose if the EU can ban the advertising and sponsorships of tobacco. The court said no:
1) There has to be harmonization of rules (there can’t be rules that have no implications on excising national rules).
2) The disparity must give rise to concrete obstacles to the internal market.
3) The legislation must contribute to the elimination of these obstacles.
- 352 TFEU: residual competence
This article constitutes the most general competence within the Treaties. This article says: if action by the Union
should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives
set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a
proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the
appropriate measures. There are a few limitations to this:
- Can’t entail harmonization of Member States’ laws or regulations in cases where the Treaties exclude such
harmonization.
- Can’t be used when deciding on foreign and security policy, these are designed to protect the constitutional
boundary drawn between the TEU and the TFEU.
- Can’t be used to constitute big changes to the constitutional identity of the European Union.
- Can’t serve as a basis for widening Union powers beyond the general framework of the Treaties.
Specific competences = more defined and easier to find the competence, these are formulated in a specific policy area.
2. What are the types of EU competences?
There are three categories of competences:
1. Exclusive competences (art. 3 TFEU) = In these policy areas, only the EU may legislate and adopt legally binding
facts, the Member States can only do this themselves when they are empowered by the EU or for the
implementation of Union acts (article 2(1) TFEU). The EU can also have exclusive external competences (art. 3(2)
TFEU), this is when it is about a legislate act of the Union, when it is necessary to exercise its internal competence
or to affect common rules or alter their scope. ERTA case said that where there is an internal competence, the
Union has the external competence to enter into international agreements relating to the matters (implied
power), this external competence must be exclusive. Art. 3(2) TFEU decides whether the EU has exclusive
competence. Art. 216(1) TFEU (codification of the ERTA case) also states that an international agreement can also
be formed where the Treaties provide so or when it is necessary in order to achieve one of the objectives in the
Treaties.
, ERTA case (implied power)
Facts: The European Road transport Agreement (ERTA) had been drafted to harmonize certain social aspects of international road
transport and it involved the Council and a few Member States as potential signatories. The negotiations were conducted without
formal involvement of the Union, so the Commission felt excluded from its role as Europe’s external broker. The Commission
brought the matter before the European Court, and stated that the Union competence under its transport policy included a
treaty-making power (and that this power had become exclusive after the adoption of Union (legislation))
Legal question: do the negotiations by the council constitute infringements of the articles 75, 228 and 235 EEC, with particular
regard to the division of powers between the commission and the council, and would the agreement need to be annulled?
Court: from the fact that the Union has an internal power, in this case the competence to adopt social provisions, the court thus
implied an external power to conclude international treatied for all matters falling within the scope of the Union’s internal
competence. The reasoning of the Court was based on the idea of a parallel treaty-making power running alongside internal
legislative power. The European Court here confirmed a doctrine according to which ‘treaty power is coexistensive with its
internal domestic powers’ and which thus ‘cuts across all areas of its internal domestic competence’.
2. Shared competences (art. 4 TFEU) = In these areas the EU can exercise competence first, but only with regard to
matters laid down in the relevant Union instrument and not to the entire policy area. In these competences the
Member State can still act when the EU does not act, but not when the EU has acted (art. 2(2) TFEU).
3. Coordinating competences (art. 6 TFEU) = The EU may give advice to the Member States and coordinate them. In
these competences the Member State are in any circumstance allowed to act.
4. Supporting/complementary competences (art. 6 TFEU) = The EU can support the Member States. This is mostly
done financially. In these competences the Member State are in any circumstance allowed to act.
3. What is the meaning of the principle of subsidiarity? (Only focus on this principle, not the other
two!)
Subsidiarity = a central authority should only perform those tasks which cannot be performed effectively at a more
immediate or local level. With the Maastricht Treaty from 1992, subsidiarity became a constitutional principle.
- Positive: It positively encourages “large associations” to assist smaller ones, where they need help.
- Negative: It negatively discourages “to assign to a greater and higher association what lesser and subordinate
organizations can do”. It is this dual character that has given the principle of subsidiarity its “Janus-like” character.
Subsidiarity is only to apply within the scope of the Union’s non-exclusive powers and thus confirms that the European
principle of subsidiarity is a principle of cooperative federalism. The treaty definition of subsidiarity builds on two tests:
1. National insufficiency test (absolute standard) = the union can only act where the objectives of the proposed
action could not be sufficiently achieved by the Member States.
2. Comparative efficiency test (relative standard) = the union should not act unless it can better achieve the
objectives of the proposed action.
1. Subsidiarity as a political safeguard
The Protocol aims to establish “a system of monitoring” the application of the principle. Each Union institution is called
upon to ensure constant respect for the principle of subsidiarity. This means in particular that they must forward draft
legislative acts to national parliaments. These draft legislative acts must “be justified” with regard to the principle of
subsidiarity and proportionality. Each national parliament may within eight weeks procedure a reasoned opinion stating
why it considers that a European legislative draft does not comply with the principle of subsidiarity. Each Parliament will
thereby have two votes.
- Yellow card-mechanism
Where the negative votes amount to one-third, the European Union draft must be reviewed. This is called the “yellow
card” mechanism, since the Union legislator may decide to maintain, amend or withdraw the draft. The yellow card
mechanism is slightly strengthened in relation to proposals under the ordinary legislative procedure: only a majority
of the votes allocated to the national parliaments will trigger it.
- Orange card-mechanism
Under the “orange card mechanism” the Commission’s justification for maintaining the proposal, as well as the
reasoned opinions of the national parliaments, will be submitted to the Union legislator. The Union legislator will have
to consider whether the proposal is compatible with the principle of subsidiarity.
