Introduction to European Union Law
Competences (R. Schütze)
Implied external powers (art. 216 TFEU): the EU may conclude an agreement
with third countries or international organizations where the (1) Treaties provide
so or (2) where the conclusion of an agreement is necessary in order to achieve,
within the framework of the policies, the objectives referred to in the Treaties, or
(3) is provided for in a legally binding act or is likely to affect common rules or
alter their scope.
Categories of EU competences – art. 2 TFEU :
Exclusive competences (art. 3 TFEU) = constitutionally guaranteed
monopolies. According to Article 3(2), the Union may subsequently obtain
exclusive treatymaking power, where one of three situations of art. 216 TFEU is
fulfilled. These three situations are said to codify three famous judicial doctrines:
- EU obtains a subsequently exclusive treaty-making power when the
conclusion of an international agreement 'is provided for in a legislative act'
= WTO Doctrine.
- Exclusive treaty power, where this is necessary to enable the EU to exercise
its internal competence.
- ERTA doctrine = member states deprived of their treaty-making power to
the extent that their exercise affects internal European law to prevent an
international agreement concluded by member states from undermining 'the
uniform and consistent application of the EU rules and the proper
functioning of the system which they establish.
Shared competences (art. 2(2) TFEU) = ordinary unless the treaties provide
otherwise > the EU and member states may legislate but are prohibited to act at
the same time. The Member States shall exercise their competence to the extent
that the Union has not exercised its competence.
Coordinating competences (art. 5 + 2(3) TFEU) = EU has competence to
provide 'arrangements' for member states to exercise their competences in a
coordinated manner – adopts guidelines/initiatives to ensure coordination.
Complementary competences (art. 6 + 2(5) TFEU) = actions to support
(finance), coordinate or supplement the actions of MS with an exhaustive list in
art. 6 TFEU. It doesn’t harmonize the member states laws or regulations > EU
legislation must not modify existing or future national legislation (strict view) or
EU legislation are only trimmed so as to prevent the de jure harmonization of
national legislation (less strict).
In accordance with the principle of conferral the EU must have been granted the
competence to act to be able to actually do so > explicit external
competence. The implied powers doctrine stretched to the point where the
existence of an internal competence automatically entails the existence of an
external competence > in foro interno, in foro externo.
Legal order (chapter 2)
Legal order = totality of legal norms applicable in a territory – exist when there
is authority (= institutions ensure enforcement of norms and dispute
settlement) & autonomy (= norms are self-referential and don’t rely on other
norms).
1
, EU can act on its own motion and is empowered and constrained by 3 principles
(art. 4/5 TEU):
1. Conferral = safeguard that ensures that EU only acts if member states
have explicitly authorised (treaties) – protects democracy of the transfer of
competence to the EU. There are implied powers where the EU can take
external action in areas where isn’t granted but implied by the competence
in internal matters.
a. Material safeguard > EU doesn’t overstep its competences by taking
action in unauthorised areas if they are bound to a legal basis
(Tobacco Advertising I).
b. Procedural safeguard > TFEU prescribes different decision-making
procedures and varying degrees on institutional involvement for EU
action depending on the area in question when bound to a legal basis.
Ultra vires review = examining whether those competences are overstepped.
First the Court looks at the aim and content and then at the substance objectives.
A measures can have more than one legal basis. If one element dominates the
identification is called the center of gravity test and if elements a equal it is
called a cumulation of legal bases > cumulation is ruled out when the bases are
incompatible (Titanium Dioxide Directive).
2. Subsidiarity > when the EU has the competence to act the use is only
allowed when its subsidiary – only applies to the EU non-exclusive
competences (the one’s in art. 4 TFEU). Action only allowed if the objective
can’t sufficiently be achieved by members states – political area.
Dual test = (1) objectives can’t be realised by member states, (2) concerning a
cross-border issue that can be realised more effectively at EU level. Commission
send all draft legislative acts of shared competence to the member states which
have 8 weeks to send a reasoned opinion and can block with a vote majority if
the Council/Parliament supports the block.
3. Proportionality > determines whether the chosen act is appropriate
(causality) and necessary (implicit bias in favour of non-legislative action). If
action is needed regulations are preferred because states have a say in the
transposition. Framework directives are also preferred because they grant
the states more leeway than in detailed measures.
a. Test of causality or appropriateness > does the measure achieve the
object.
b. Test of necessity or least restrictive measure.
c. Test of stricto sensu > weight against other interests.
Autonomy of EU law based on principles: (van Gend en Loos + Costa v. ENEL)
1. Direct applicability (direct effect) – provisions need to be sufficiently clear,
precise and unconditional so that member states don’t need to take
measures to make it applicable. Direct effect contains EU law and EU
principles (Mangold) and fundamental rights.
a. Vertical invokement: private parties and MS.
b. Horizontal invokement: private parties.
2. Primacy: Sperrwirkung – not absolute, only where sovereignty is limited
(Inter-Environnement + Simmenthal).
Principle of sincere cooperation (art. 4(3) TEU) = obliges member states to
take measures necessary to guarantee the application and effectiveness of EU
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Competences (R. Schütze)
Implied external powers (art. 216 TFEU): the EU may conclude an agreement
with third countries or international organizations where the (1) Treaties provide
so or (2) where the conclusion of an agreement is necessary in order to achieve,
within the framework of the policies, the objectives referred to in the Treaties, or
(3) is provided for in a legally binding act or is likely to affect common rules or
alter their scope.
Categories of EU competences – art. 2 TFEU :
Exclusive competences (art. 3 TFEU) = constitutionally guaranteed
monopolies. According to Article 3(2), the Union may subsequently obtain
exclusive treatymaking power, where one of three situations of art. 216 TFEU is
fulfilled. These three situations are said to codify three famous judicial doctrines:
- EU obtains a subsequently exclusive treaty-making power when the
conclusion of an international agreement 'is provided for in a legislative act'
= WTO Doctrine.
- Exclusive treaty power, where this is necessary to enable the EU to exercise
its internal competence.
- ERTA doctrine = member states deprived of their treaty-making power to
the extent that their exercise affects internal European law to prevent an
international agreement concluded by member states from undermining 'the
uniform and consistent application of the EU rules and the proper
functioning of the system which they establish.
Shared competences (art. 2(2) TFEU) = ordinary unless the treaties provide
otherwise > the EU and member states may legislate but are prohibited to act at
the same time. The Member States shall exercise their competence to the extent
that the Union has not exercised its competence.
Coordinating competences (art. 5 + 2(3) TFEU) = EU has competence to
provide 'arrangements' for member states to exercise their competences in a
coordinated manner – adopts guidelines/initiatives to ensure coordination.
Complementary competences (art. 6 + 2(5) TFEU) = actions to support
(finance), coordinate or supplement the actions of MS with an exhaustive list in
art. 6 TFEU. It doesn’t harmonize the member states laws or regulations > EU
legislation must not modify existing or future national legislation (strict view) or
EU legislation are only trimmed so as to prevent the de jure harmonization of
national legislation (less strict).
In accordance with the principle of conferral the EU must have been granted the
competence to act to be able to actually do so > explicit external
competence. The implied powers doctrine stretched to the point where the
existence of an internal competence automatically entails the existence of an
external competence > in foro interno, in foro externo.
Legal order (chapter 2)
Legal order = totality of legal norms applicable in a territory – exist when there
is authority (= institutions ensure enforcement of norms and dispute
settlement) & autonomy (= norms are self-referential and don’t rely on other
norms).
1
, EU can act on its own motion and is empowered and constrained by 3 principles
(art. 4/5 TEU):
1. Conferral = safeguard that ensures that EU only acts if member states
have explicitly authorised (treaties) – protects democracy of the transfer of
competence to the EU. There are implied powers where the EU can take
external action in areas where isn’t granted but implied by the competence
in internal matters.
a. Material safeguard > EU doesn’t overstep its competences by taking
action in unauthorised areas if they are bound to a legal basis
(Tobacco Advertising I).
b. Procedural safeguard > TFEU prescribes different decision-making
procedures and varying degrees on institutional involvement for EU
action depending on the area in question when bound to a legal basis.
Ultra vires review = examining whether those competences are overstepped.
First the Court looks at the aim and content and then at the substance objectives.
A measures can have more than one legal basis. If one element dominates the
identification is called the center of gravity test and if elements a equal it is
called a cumulation of legal bases > cumulation is ruled out when the bases are
incompatible (Titanium Dioxide Directive).
2. Subsidiarity > when the EU has the competence to act the use is only
allowed when its subsidiary – only applies to the EU non-exclusive
competences (the one’s in art. 4 TFEU). Action only allowed if the objective
can’t sufficiently be achieved by members states – political area.
Dual test = (1) objectives can’t be realised by member states, (2) concerning a
cross-border issue that can be realised more effectively at EU level. Commission
send all draft legislative acts of shared competence to the member states which
have 8 weeks to send a reasoned opinion and can block with a vote majority if
the Council/Parliament supports the block.
3. Proportionality > determines whether the chosen act is appropriate
(causality) and necessary (implicit bias in favour of non-legislative action). If
action is needed regulations are preferred because states have a say in the
transposition. Framework directives are also preferred because they grant
the states more leeway than in detailed measures.
a. Test of causality or appropriateness > does the measure achieve the
object.
b. Test of necessity or least restrictive measure.
c. Test of stricto sensu > weight against other interests.
Autonomy of EU law based on principles: (van Gend en Loos + Costa v. ENEL)
1. Direct applicability (direct effect) – provisions need to be sufficiently clear,
precise and unconditional so that member states don’t need to take
measures to make it applicable. Direct effect contains EU law and EU
principles (Mangold) and fundamental rights.
a. Vertical invokement: private parties and MS.
b. Horizontal invokement: private parties.
2. Primacy: Sperrwirkung – not absolute, only where sovereignty is limited
(Inter-Environnement + Simmenthal).
Principle of sincere cooperation (art. 4(3) TEU) = obliges member states to
take measures necessary to guarantee the application and effectiveness of EU
2
