Week 2 Lecture: Law-making I: Competences, legal basis and the legisla=ve
process
Competences catalogue
Exclusive competence
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Art. 2, 1 and 3 TFEU
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Customs union
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Common commercial policy etc.
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+ criteria under art. 3(2), TFEU determine EU exclusivity
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Only EU acts: subsidiarity (art. 5(3), TEU) + proporFonality check (art. 5(4), TEU)
Shared competence
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Art. 2(2), TFEU + art. 4(2), TFEU
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Internal market
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Social policy etc.
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EU acts but subsidiary check and proporFonality check
Supplementary competences
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Art. 6, TFEU
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Culture, tourism, administraFve cooperaFon, public health, educaFon, and training
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EU harmonizaFon = prohibited
Two reasons for a legal basis…
1. We need a legal basis because the principle of conferral (art. 2(6), TFEU) kicks in. The
EU needs authorizaFon to act.
2. No legal basis or wrong legal basis = annulment of act (art. 263, TFEU)
Legal basis
What is a legal basis?
Provision that gives:
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Who is acFng?
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How are they acFng?
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In what form are they acFng (direcFve or regulaFon etc.)
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What is the decision-making process?
o Rule = Ordinary legislaFve Procedure = general procedure
How to choose a legal basis?
Titanium dioxide (C-300/89 Commission v Council) or Recovery of Indirect taxes C-338/01
1. Necessary to idenFfy the main aim and content of the measure at hand (centre of
gravity)
a. Choice rests on objecFve factors amenable to legal review
2. ExcepFonally two or more legal bases can be combined if…
a. Several objecFves of a legislaFve acts are inseparably linked
b. No hierarchy between the norms
i. Art. 192(2), TFEU = derogaFon from paragraph 1. Art. 114 takes
preference over 192(2), TFEU.
1. Art. 192(1), TFEU = ordinary legislaFve procedure
2. Art. 192(2), TFEU = special legislaFve procedure
3. Art. 114, TFEU = ordinary legislaFve procedure
a. Tobacco adverFsing test to see whether art. 114, TFEU
can be used!!
c. Several legal bases are compaFble in their legislaFve procedure
3 elements to look at whether several bases can go together
1. Is there a hierarchy between the rules?
2. Is the legislaFve procedure idenFcal?
3. Is harmonizaFon allowed?
The internal market legal basis
Tobacco Adver2sing (c-376/98) to prevent abuse of harmonizaFon. The following condiFons
should be fulfilled:
1. There has to be harmonizaFon of naFonal laws
2. Simple dispariFes do not create EU competence to harmonize. There has to be a
(likely) distorFon of compeFFon or obstacle to trade
3. EU legislaFon must contribute to remove likely obstacles to compeFFon
Abstract risk or harm
Concrete or likely obstruc7on
Mere findings of dispariFes between
Differences between naFonal rules obstruct
naFonal rules and the abstract risk of
the fundamental freedoms and this have a
infringements of fundamental freedoms
direct impact on the funcFoning of the internal
or distorFon of compeFFon are not
market or cause significant distorFon of
sufficient.
compeFFon.
Aim is to prevent he emergence such obstacles
to trade resulFng from divergent
developments of naFonal laws (mist be likely
and measure must be designed to prevent
them).
Legal basis: the flexibility clause art. 352, TFEU
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To again objecFves of union
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No actors menFoned
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Only unanimously decided
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Consent of EP
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Not in CFSP area
Subsidiarity
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Should EU exercise power and how?
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Ex-post by CJEU but it is…
o Limited
o Difficult
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Ex ante by naFonal parliaments (protocol 2)
o Usually only prevent the legislaFon instead of stopping it
o Orange card
o Yellow card
Propor7onality
Online lecture stopped due to technical difficulFes lmao
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