LW302 EU Law
Week 4 Lecture Handout
A System of Limited Government
The EU is a system of limited government
• It cannot act whenever it wants.
• It only has the powers given to it by the Member States.
When Member States give the EU the power to act, this is called conferral.
Article 5 TEU
1. The limits of Union competences are governed by the principle of conferral.
…
2. 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.
…
Any powers that have not been conferred on the EU remain with the Member States
Article 4 TEU
1. In accordance with Article 5, competences not conferred upon the Union in
the Treaties remain with the Member States.
Because the EU can only act when the Member States have conferred upon it the power to do so,
all EU acts must have a legal basis in the Treaties.
Competence
The EU has competence to act in areas where the Member States have conferred powers upon it.
1
,In order to determine the scope of the EU’s competence in a particular area, it is necessary to
determine two things:
(1) Whether the EU has competence to act in this subject matter area
• Determined by looking to the specific Treaty article that deals with that issue area
• The Treaties define the objectives of EU competence, set the parameters for EU action, and
set conditions on its exercise of competence
• The competences of the EU in a particular area are not limited only to express powers that
are written out in the Treaty, but also include implied powers that are necessary to meet the
objectives set out in that Treaty Article
• The EU must select the correct legal basis for its actions – it cannot extend its powers by
making use of a legal basis in which it has greater competences
Case C-376/98 Germany v European Parliament and Council (Tobacco Advertising
I) [2000]
In this case, the EU adopted a Directive that essentially prohibited tobacco
advertising in the EU. Because it was prevented from harmonizing on the basis
of health policy, the EU based the Directive on its power to regulate the
internal market (Article 114 TFEU, ex 100a TEC), and claimed that its purpose
was to open up the market for products that serve as the media for advertising
and sponsorship of tobacco products. The CJEU found that for a measure to
be based on 114 TFEU, it had to be genuinely aimed at improving the conditions
for the establishing and functioning of the internal market.
(2) What type of competence the EU has in this subject matter area
• Competences come in several different forms, as set out in Article 2 TEU, each of which
strikes a different balance between the power conferred upon the EU, and the power
retained by the Member States.
Types of competence:
• Exclusive competence
• Shared competence
• Supporting, Coordinating, Supplementing competence
• Other special areas
o Economic and Employment Policy
o Common Foreign and Security Policy (CFSP)
Exclusive Competence
• Exclusive competence is defined in Article 2(1) TFEU
2
, Article 2 TFEU
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.
• In areas of exclusive competence, only the EU can act
• The Member States may act only if the EU empowers them to do so, or if they are
implementing EU law
• This is the area of greatest authority for the EU
• Areas of exclusive competence are listed in Article 3 TFEU
Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of
the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries
policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative act
of the Union or is necessary to enable the Union to exercise its internal
competence, or in so far as its conclusion may affect common rules or alter
their scope.
Shared Competence
• Shared competence is defined in Article 2(2) TFEU
Article 2 TFEU
3
Week 4 Lecture Handout
A System of Limited Government
The EU is a system of limited government
• It cannot act whenever it wants.
• It only has the powers given to it by the Member States.
When Member States give the EU the power to act, this is called conferral.
Article 5 TEU
1. The limits of Union competences are governed by the principle of conferral.
…
2. 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.
…
Any powers that have not been conferred on the EU remain with the Member States
Article 4 TEU
1. In accordance with Article 5, competences not conferred upon the Union in
the Treaties remain with the Member States.
Because the EU can only act when the Member States have conferred upon it the power to do so,
all EU acts must have a legal basis in the Treaties.
Competence
The EU has competence to act in areas where the Member States have conferred powers upon it.
1
,In order to determine the scope of the EU’s competence in a particular area, it is necessary to
determine two things:
(1) Whether the EU has competence to act in this subject matter area
• Determined by looking to the specific Treaty article that deals with that issue area
• The Treaties define the objectives of EU competence, set the parameters for EU action, and
set conditions on its exercise of competence
• The competences of the EU in a particular area are not limited only to express powers that
are written out in the Treaty, but also include implied powers that are necessary to meet the
objectives set out in that Treaty Article
• The EU must select the correct legal basis for its actions – it cannot extend its powers by
making use of a legal basis in which it has greater competences
Case C-376/98 Germany v European Parliament and Council (Tobacco Advertising
I) [2000]
In this case, the EU adopted a Directive that essentially prohibited tobacco
advertising in the EU. Because it was prevented from harmonizing on the basis
of health policy, the EU based the Directive on its power to regulate the
internal market (Article 114 TFEU, ex 100a TEC), and claimed that its purpose
was to open up the market for products that serve as the media for advertising
and sponsorship of tobacco products. The CJEU found that for a measure to
be based on 114 TFEU, it had to be genuinely aimed at improving the conditions
for the establishing and functioning of the internal market.
(2) What type of competence the EU has in this subject matter area
• Competences come in several different forms, as set out in Article 2 TEU, each of which
strikes a different balance between the power conferred upon the EU, and the power
retained by the Member States.
Types of competence:
• Exclusive competence
• Shared competence
• Supporting, Coordinating, Supplementing competence
• Other special areas
o Economic and Employment Policy
o Common Foreign and Security Policy (CFSP)
Exclusive Competence
• Exclusive competence is defined in Article 2(1) TFEU
2
, Article 2 TFEU
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.
• In areas of exclusive competence, only the EU can act
• The Member States may act only if the EU empowers them to do so, or if they are
implementing EU law
• This is the area of greatest authority for the EU
• Areas of exclusive competence are listed in Article 3 TFEU
Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of
the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries
policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative act
of the Union or is necessary to enable the Union to exercise its internal
competence, or in so far as its conclusion may affect common rules or alter
their scope.
Shared Competence
• Shared competence is defined in Article 2(2) TFEU
Article 2 TFEU
3
