Topic 1
The Pillar Structure
1993 – 2009 / Maastricht Treaty
1st Pillar – The Treaties
2nd Pillar – CFSP
3rd Pillar – Justice and Home affairs
MS wanted to emphasize the institutional difference / more concerned with the latter two
areas and did not want them to be governed supranationally due to their sensitivity
Intergovernmental structure
Decision making happened in the Council by unanimous voting
Very limited judicial review
And no direct effect
Maastricht Treaty also increased the involvement of the EP in OLP and introduced
subsidiarity
Treaty of Amsterdam
Introduced the principles of openness and transparency
Introduced article 7 TEU
Lisbon Treaty 2007 changed the overall structure
Created TEU and TFEU
Drue heavily from the Constitutional Treaty
Depolarization
Connected the Charter via Article 6(1) TEU
CFSP is incorporated into the treaties BUT Article 24 reserves its special character
o Article 40 tries to bridge the barrier between CFSP external affairs and normal
external affairs
Introduced the simplified revision procedure
o Cannot be used to expand EU competences
Revision of Treaties
Ordinary Revision Procedure is governed by Article 48 TEU
Can only be revised by another Treaty
Requires European Council majority to launch
Convention adopts recommendation
Intergovernmental Conference unanimity for amendments
ratification by all MS
Increasingly difficult because there are no longer only 6 members
Withdrawal
Also requires an international treaty but no requirement for ratification by member
states
Topic 2
,Competences and Conferral
European Institutions can act in areas where the treaties confer competence on them to act; in
compliance with the principle of conferral per Article 5(2) TEU.
Competences are divided into three categories (Article 2 – 6 TFEU) –
1. Exclusive competences – Article 3 TFEU
2. Shared competences – Article 4 TFEU
3. Supplementary / Complementary competences – Article 6 TFEU
External Competences –
Certain external competences are explicitly exclusive
There are additionally implied external competences
o Where the Union is given an internal competence in a given area and has acted
then there is an implied external competence for the Union to deal with
external matters vis a vis third country in that area
Choice of Legal Basis
When the Union seeks to act a specific Treaty provision must define the area, purpose,
instrument and procedure of said act – this is known as the legal basis.
The Court in Tobacco Advertising [59] emphasised that “objective factors which are
amenable to judicial review”, including the aim and content of the act (Tobacco advertising;
Titanium Dioxide), must be used to decide the legal basis upon which an act is adopted.
Where there is more than one possible legal basis on which the Union can act, the “centre of
gravity” test, established in Titanium Dioxide, is to be applied in order to determine which
legal basis best fits the nature of the act.
Contentious Legal Bases
Article 114 TFEU – The internal market legal basis
Allows for the EP and Council in accordance with the OLP (set out in Article) to take
measures to facilitate the functioning of the internal market
The controversial issue is that acts taken to facilitate the functioning of the EU often
overlap with competences which are left to MS and it is significantly easier to justify
subsidiarity on an internal market basis
o They often have a double objective
Tobacco Advertising
Article 352 TFEU – Flexibility clause
Principle of Subsidiarity
If the EU wishes to act in an area of shared competence / If the EU’s act is based on a legal
basis which confers competence on both the EU and the MS to act the principles of
subsidiarity and proportionality must be met
Subsidiarity – Article 5(3) TFEU.
, “The Union shall act only if and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States… but can rather… be better
achieved at Union level.”
Checking compliance with Subsidiarity
Article 12(b) TEU confers on the national parliaments the responsibility of ensuring that “the
principle of subsidiarity is respected”.
This is done via the ‘early warning mechanism’ set out in Protocol 2 which allows the
national parliaments to issue what is colloquially known as a “yellow card” to express that
the Union institution’s legislative proposal breaches the principle of subsidiarity.
After the National Parliaments are given the draft legislative act, they have 8 weeks to
issue a reasoned opinion stating why they believe the proposal does not comply with
subsidiarity
Only applies to ‘legislative acts’
Article 7 Protocol 2
o If there is an individual opinion by a national parliament then the institutions
only have a duty to “take into account” the opinion
o If 1/3 of parliaments then the draft “must be reviewed” but they can decide to
“maintain, amend or withdraw”
o Simple majority requires the same as above + justification if it is maintained
o There is no requirement that the draft not be adopted
The Posted Workers Directive Issues
The Commission introduced the principle of “equal pay for equal work” in the new Posted
Workers Directive. Whilst previously posted workers were guaranteed the minimum wage of
the host country, this principle would increase wages for the most part, ensuring equal pay.
Amendment sought to –
“Balance between the objectives of promoting and facilitating the cross-border provision
of services, providing protection to posted workers and ensuring a level-playing field
between foreign and local competitors”
The proposal was introduced largely with the aim of preventing social dumping and unfair
competition.
1. Firms could, under the previous Directive, engage in “regulatory arbitrage” (ETUI
Policy Brief 2015: Berntsen and Lillie).
Social contributions are paid back to the host country
Firms benefit from the disparities between the social security systems of EU
member states
Companies can look for the countries with the lowest social contributions
Makes regulatory evasion hard to detect
HOWEVER,
2. Introducing greater social constraints can damage competition in the EU single
market (ECIPE 2017)
Advancement of protectionist measures “under the pretext that fairness and
equality was not being respected”
Posted workers improve single market integration
The Pillar Structure
1993 – 2009 / Maastricht Treaty
1st Pillar – The Treaties
2nd Pillar – CFSP
3rd Pillar – Justice and Home affairs
MS wanted to emphasize the institutional difference / more concerned with the latter two
areas and did not want them to be governed supranationally due to their sensitivity
Intergovernmental structure
Decision making happened in the Council by unanimous voting
Very limited judicial review
And no direct effect
Maastricht Treaty also increased the involvement of the EP in OLP and introduced
subsidiarity
Treaty of Amsterdam
Introduced the principles of openness and transparency
Introduced article 7 TEU
Lisbon Treaty 2007 changed the overall structure
Created TEU and TFEU
Drue heavily from the Constitutional Treaty
Depolarization
Connected the Charter via Article 6(1) TEU
CFSP is incorporated into the treaties BUT Article 24 reserves its special character
o Article 40 tries to bridge the barrier between CFSP external affairs and normal
external affairs
Introduced the simplified revision procedure
o Cannot be used to expand EU competences
Revision of Treaties
Ordinary Revision Procedure is governed by Article 48 TEU
Can only be revised by another Treaty
Requires European Council majority to launch
Convention adopts recommendation
Intergovernmental Conference unanimity for amendments
ratification by all MS
Increasingly difficult because there are no longer only 6 members
Withdrawal
Also requires an international treaty but no requirement for ratification by member
states
Topic 2
,Competences and Conferral
European Institutions can act in areas where the treaties confer competence on them to act; in
compliance with the principle of conferral per Article 5(2) TEU.
Competences are divided into three categories (Article 2 – 6 TFEU) –
1. Exclusive competences – Article 3 TFEU
2. Shared competences – Article 4 TFEU
3. Supplementary / Complementary competences – Article 6 TFEU
External Competences –
Certain external competences are explicitly exclusive
There are additionally implied external competences
o Where the Union is given an internal competence in a given area and has acted
then there is an implied external competence for the Union to deal with
external matters vis a vis third country in that area
Choice of Legal Basis
When the Union seeks to act a specific Treaty provision must define the area, purpose,
instrument and procedure of said act – this is known as the legal basis.
The Court in Tobacco Advertising [59] emphasised that “objective factors which are
amenable to judicial review”, including the aim and content of the act (Tobacco advertising;
Titanium Dioxide), must be used to decide the legal basis upon which an act is adopted.
Where there is more than one possible legal basis on which the Union can act, the “centre of
gravity” test, established in Titanium Dioxide, is to be applied in order to determine which
legal basis best fits the nature of the act.
Contentious Legal Bases
Article 114 TFEU – The internal market legal basis
Allows for the EP and Council in accordance with the OLP (set out in Article) to take
measures to facilitate the functioning of the internal market
The controversial issue is that acts taken to facilitate the functioning of the EU often
overlap with competences which are left to MS and it is significantly easier to justify
subsidiarity on an internal market basis
o They often have a double objective
Tobacco Advertising
Article 352 TFEU – Flexibility clause
Principle of Subsidiarity
If the EU wishes to act in an area of shared competence / If the EU’s act is based on a legal
basis which confers competence on both the EU and the MS to act the principles of
subsidiarity and proportionality must be met
Subsidiarity – Article 5(3) TFEU.
, “The Union shall act only if and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States… but can rather… be better
achieved at Union level.”
Checking compliance with Subsidiarity
Article 12(b) TEU confers on the national parliaments the responsibility of ensuring that “the
principle of subsidiarity is respected”.
This is done via the ‘early warning mechanism’ set out in Protocol 2 which allows the
national parliaments to issue what is colloquially known as a “yellow card” to express that
the Union institution’s legislative proposal breaches the principle of subsidiarity.
After the National Parliaments are given the draft legislative act, they have 8 weeks to
issue a reasoned opinion stating why they believe the proposal does not comply with
subsidiarity
Only applies to ‘legislative acts’
Article 7 Protocol 2
o If there is an individual opinion by a national parliament then the institutions
only have a duty to “take into account” the opinion
o If 1/3 of parliaments then the draft “must be reviewed” but they can decide to
“maintain, amend or withdraw”
o Simple majority requires the same as above + justification if it is maintained
o There is no requirement that the draft not be adopted
The Posted Workers Directive Issues
The Commission introduced the principle of “equal pay for equal work” in the new Posted
Workers Directive. Whilst previously posted workers were guaranteed the minimum wage of
the host country, this principle would increase wages for the most part, ensuring equal pay.
Amendment sought to –
“Balance between the objectives of promoting and facilitating the cross-border provision
of services, providing protection to posted workers and ensuring a level-playing field
between foreign and local competitors”
The proposal was introduced largely with the aim of preventing social dumping and unfair
competition.
1. Firms could, under the previous Directive, engage in “regulatory arbitrage” (ETUI
Policy Brief 2015: Berntsen and Lillie).
Social contributions are paid back to the host country
Firms benefit from the disparities between the social security systems of EU
member states
Companies can look for the countries with the lowest social contributions
Makes regulatory evasion hard to detect
HOWEVER,
2. Introducing greater social constraints can damage competition in the EU single
market (ECIPE 2017)
Advancement of protectionist measures “under the pretext that fairness and
equality was not being respected”
Posted workers improve single market integration
