LAW OF EXTERNAL RELATIONS
LECTURE NOTES – Exclusivity and non-exclusivity
EXCLUSIVITY AND NON-EXCLUSIVITY
► Introduction
► Categories of competences in the TFEU
► Exclusivity
► Non-exclusivity
► A second look at the categories of competences in the TFEU
INTRODUCTION
► Judgment of 5 December 2017 , Germany v Council (‘COTIF’), C-600/14,
EU:C:2017:935
46 [I]t follows from the Court’s settled case-law that a distinction must be made
between whether the Union has an external competence and whether any such
competence is exclusive or shared [...]
47 That distinction between whether the Union has an external competence and whether
that competence is or is not exclusive is reflected in the FEU Treaty. […]
49 It follows from the very wording of [Article 216(1) TFEU], in which no distinction is
made according to whether the European Union’s external competence is
exclusive or shared, that the Union possesses such a competence in four situations.
Contrary to the arguments put forward by the Federal Republic of Germany, the scenario
in which the conclusion of an agreement is liable to affect common rules or to alter their
scope, a scenario where the Union competence is, under Article 3(2) TFEU,
exclusive, constitutes only one of those situations.
50 Moreover, it is clear from a comparison of the respective wording of Article 216(1)
TFEU and Article 3(2) TFEU that the situations in which the Union has an
external competence, in accordance with the former provision, are not
limited to the various scenarios set out in the latter provision, where the
Union has exclusive external competence.
1
, LAW OF EXTERNAL RELATIONS
LECTURE NOTES – Exclusivity and non-exclusivity
51 It follows that, contrary to the arguments put forward by the Federal Republic of
Germany, the European Union may have an external competence that falls
outside the situations laid down in Article 3(2) TFEU.
CATEGORIES OF COMPETENCE
ART. 2 TFEU
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.
2. When the Treaties confer on the Union a competence shared with the Member States in a
specific area, the Union and the Member States may legislate and adopt legally binding acts
in that area. The Member States shall exercise their competence to the extent that the Union
has not exercised its competence. The Member States shall again exercise their competence
to the extent that the Union has decided to cease exercising its competence.
2
LECTURE NOTES – Exclusivity and non-exclusivity
EXCLUSIVITY AND NON-EXCLUSIVITY
► Introduction
► Categories of competences in the TFEU
► Exclusivity
► Non-exclusivity
► A second look at the categories of competences in the TFEU
INTRODUCTION
► Judgment of 5 December 2017 , Germany v Council (‘COTIF’), C-600/14,
EU:C:2017:935
46 [I]t follows from the Court’s settled case-law that a distinction must be made
between whether the Union has an external competence and whether any such
competence is exclusive or shared [...]
47 That distinction between whether the Union has an external competence and whether
that competence is or is not exclusive is reflected in the FEU Treaty. […]
49 It follows from the very wording of [Article 216(1) TFEU], in which no distinction is
made according to whether the European Union’s external competence is
exclusive or shared, that the Union possesses such a competence in four situations.
Contrary to the arguments put forward by the Federal Republic of Germany, the scenario
in which the conclusion of an agreement is liable to affect common rules or to alter their
scope, a scenario where the Union competence is, under Article 3(2) TFEU,
exclusive, constitutes only one of those situations.
50 Moreover, it is clear from a comparison of the respective wording of Article 216(1)
TFEU and Article 3(2) TFEU that the situations in which the Union has an
external competence, in accordance with the former provision, are not
limited to the various scenarios set out in the latter provision, where the
Union has exclusive external competence.
1
, LAW OF EXTERNAL RELATIONS
LECTURE NOTES – Exclusivity and non-exclusivity
51 It follows that, contrary to the arguments put forward by the Federal Republic of
Germany, the European Union may have an external competence that falls
outside the situations laid down in Article 3(2) TFEU.
CATEGORIES OF COMPETENCE
ART. 2 TFEU
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.
2. When the Treaties confer on the Union a competence shared with the Member States in a
specific area, the Union and the Member States may legislate and adopt legally binding acts
in that area. The Member States shall exercise their competence to the extent that the Union
has not exercised its competence. The Member States shall again exercise their competence
to the extent that the Union has decided to cease exercising its competence.
2
