Summary Probleem 6

Probleem 6 – Law in action

Leerdoelen:

Leerdoel 1: When is the EU competent to act? What are the categories of competences of the EU? NB: look at
the implicit external competence as well!

Leerdoel 2: What is the principle of conferral?

Leerdoel 3: What is the principle of subsidiarity and what does it meaning?

Leerdoel 4: What does the principle of proportionality entail?

Boek 1: Amtenbrink & Vedder, hoofdstuk 2 paragraaf 1, 2-2.3, p. 29-49

Leerdoel 1: When is the EU competent to act? What are the categories of competences of the EU? NB: look at
the implicit external competence as well!

 A legal order can be said to exist when two conditions are met:
 Autonomy: the norms that make up the legal order are self-referential and don’t rely on other norms
for meaning or validity.
 Authority: requires the legal order to have its own institutions to ensure that the norms are enforced
and disputes are settled.
 Categories of competence of the EU:
 Constituting principles that establish and limit the European Union as an actor. The EU is empowered
and constrained by three general principles: conferral, subsidiarity and proportionality. (art. 4(1) and 5
TEU)
 Art. 5 TEU: all EU measures must have a legal basis in the Treaties. Two reasons:
 It is a means of ensuring that the Union doesn’t overstep its competences by taking action in
areas where it isn’t authorised to do so.
 It reflects the fact that the TFEU prescribes different decision-making procedures and varying
degrees of institutional involvement for EU action depending on the area in question.
 Principles dealing with the member states and individuals as actors in an EU law framework.
 Principles that establish the values that guide European Union action.
 Implied external competence: the doctrine provides that the Union can take external action in areas
where it has not been granted this competence expressly by the Treaties, but rather where this
external competence is implied by the competence in internal matters.
 Chart for reviewing the Union’s powers:
 Conferral:
 Objective and substance of the (proposed) EU measure:
 The objective and substance don’t fall under any of the existing legal bases in the TEU or
TFEU:
 EU has no competence -> measure is void(=leegte).
 The objective and substance do fall under an existing legal basis:
 Does the legal basis fall under one of competences listed in articles 3 or 4 TFEU?
 Article 4 TFEU: does the (proposed) measure concern a cross-border issue for which
European action offers economies of scale or greater effectiveness?
 Yes: is the (proposed) measure appropriate for achieving the stated objective?
 Yes: is the (proposed) measure necessary for achieving the stated objective
because a less intrusive alternative doesn’t exist?
 Yes: is the (proposed) measure proportionate in terms of its impact
because it takes account of other interest?
Yes: measure is valid.
No: measure is incompatible with principle of proportionality ->
measure is void.
 No: measure is incompatible with principle of proportionality ->
measure is void.
 No: measure is incompatible with principle of proportionality -> measure is
void.
 No: competence cannot be exercised -> measure is void.