GENERAL PRINCIPLES
Principle of conferred powers
• Article 5
• 1. The limits of Union competences are governed by
the principle of conferral. (…)
• 2. Under the principle of conferral, the Union shall
act only within the limits of the competences
conferred upon it by the Member States in the
Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the
Treaties remain with the Member States.
•
Powers of the EU
• Explicit powers
• Implied powers
• Art. 352 TFEU
Implied powers
• the existence of a given power implies also the
existence of any other power which is
reasonably necessary for the exercise of the
former;
• the existence of the given objective or function
implies the existence of any power reasonably
necessary to attain it.
Implied powers
27 (…) it must be considered whether the second paragraph of Article 118,
which provides that the Commission is to act, inter alia, by arranging
consultations, gives it the power to adopt a binding decision with a view to
the arrangement of such consultations .
28 In that connection it must be emphasized that where an article of the
EEC Treaty - in this case Article 118 - confers a specific task on the
Commission it must be accepted, if that provision is not to be rendered
wholly ineffective, that it confers on the commission necessarily and per se
the powers which are indispensable in order to carry out that task .
Accordingly, the second paragraph of Article 118 must be interpreted as
conferring on the Commission all the powers which are necessary in order
to arrange the consultations . In order to perform that task of arranging
consultations the Commission must necessarily be able to require the
Member States to notify essential information, in the first place in order to
identify the problems and in the second place in order to pinpoint the
possible guidelines for any future joint action on the part of the Member
States; likewise it must be able to require them to take part in consultations
.
Implied powers
Case C-376/98 Germany v EP and Council (Tabaco Advertising case)
83.
Those provisions, read together, make it clear
that the measures referred to in Article 100a(1) of the
Treaty are intended to improve the conditions for the
establishment and functioning of the internal market.
To construe that article as meaning that it vests in
the Community legislature a general power to
regulate the internal market would not only be
contrary to the express wording of the provisions
cited above but would also be incompatible with the
principle embodied in Article 3b of the EC Treaty (now
Article 5 EC) that the powers of the Community are
limited to those specifically conferred on it.
Implied powers
Case C-376/98 Germany v EP and Council (Tabaco Advertising case)
• 84. Moreover, a measure adopted on the basis of Article 100a of the
Treaty must genuinely have as its object the improvement of the
conditions for the establishment and functioning of the internal
market. If a mere finding of disparities between national rules and of the
abstract risk of obstacles to the exercise of fundamental freedoms or of
distortions of competition liable to result therefrom were sufficient to
justify the choice of Article 100a as a legal basis, judicial review of
compliance with the proper legal basis might be rendered nugatory. The
Court would then be prevented from discharging the function entrusted to
it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring that the
law is observed in the interpretation and application of the Treaty.
• 85. So, in considering whether Article 100a was the proper legal basis,
the Court must verify whether the measure whose validity is at issue in
fact pursues the objectives stated by the Community legislature (…).
Article 352
Article 352
(ex Article 308 TEC)
1.
If action by the Union should prove necessary,
within the framework of the policies defined in
the Treaties, to attain one of the objectives set
out in the Treaties, and the Treaties have not
provided the necessary powers, the Council, acting
unanimously on a proposal from the Commission and
after obtaining the consent of the European
Parliament, shall adopt the appropriate measures.
Article 352
Limitations:
• Measures based on Article 352 may not entail
harmonisation of Member States' laws or regulations in
cases where the Treaties exclude such harmonisation;
• Article 352 cannot serve as a basis for attaining
objectives pertaining to the common foreign and
security policy;
• Article 352 cannot be used as a basis for the adoption
of provisions whose effect would, in substance, be to
amend the Treaties without following the procedure
which they provide for that purpose.
Article 352
• Opinion 2/94
Article 235 [now 352] is designed to fill the gap where no specific
provisions of the Treaty confer on the Community institutions
express or implied powers to act, if such powers appear none the
less to be necessary to enable the Community to carry out its
functions with a view to attaining one of the objectives laid down
by the Treaty.
That provision, being an integral part of an institutional system
based on the principle of conferred powers, cannot serve as a
basis for widening the scope of the Community powers beyond
the general framework created by Treaty as a whole and, in
particular, by whose that define the tasks and the activities
of the Community. On any view, Article 235 cannot be used as a
basis for the adoption of provisions whose effects would, in
substance, be amend the Treaty without following the
procedure which it provides for that purpose.
CATEGORIES AND AREAS OF UNION COMPETENCE
• Exclusive competencies of the Union;
• Shared competencies;
• Competencies to support, coordinate or
supplement the actions of the Member States;
• Exclusive competencies of the Member States.
Exclusive competencies
Article 2 TFEU
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.
Exclusive competencies
(a)
customs union;
(b) the establishing of the competition rules necessary
for the functioning of the internal market;
(c) monetary policy for the Member States whose
currency is the euro;
(d) the conservation of marine biological resources
under the common fisheries policy;
(e)
common commercial policy.
Exclusive competencies
Article 2 TFEU
conclusion of an international agreement
• when its conclusion is provided for in a
legislative act of the Union, or
• is necessary to enable the Union to exercise its
internal competence, or
• in so far as its conclusion may affect common
rules or alter their scope.
Shared competencies
the Union and the Member States may legislate
and adopt legally binding acts in that area. The
Member States exercise their competence to
the extent that the Union has not exercised its
competence. The Member States again exercise
their competence to the extent that the Union
has decided to cease exercising its competence
Shared competencies
(a)
internal market;
(b)
social policy, for the aspects defined in the Treaty;
(c)
economic, social and territorial cohesion;
(d)
agriculture and fisheries, excluding the conservation of marine
biological
resources;
(e)
environment;
(f)
consumer protection;
(g)
transport
(h)
trans-European networks;
(i)
energy;
(j)
area of freedom, security and justice;
(k)
common safety concerns in public health matters, for the aspects
defined in
the Treaty.
Competencies to carry out
supporting action
Article 2 TFEU
5.
In certain areas and under the conditions laid down in the
Treaties, the Union shall have competence to carry out actions to
support, coordinate or supplement the actions of the Member
States, without thereby superseding their competence in these
areas.
Legally binding acts of the Union adopted on the basis of the
provisions of the Treaties relating to these areas shall not entail
harmonisation of Member States' laws or regulations.
Competencies to carry out
supporting action
Article 6
The Union shall have competence to carry out actions to support,
coordinate or supplement the actions of the Member States. The
areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
•
Subsidiarity
Article 5
1. (…)The use of Union competences is governed by the principles of subsidiarity and
proportionality. (…)
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence,
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, either at central level or at regional and local level,
but can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on
the application of the principles of subsidiarity and proportionality. National Parliaments ensure
compliance with the principle of subsidiarity in accordance with the procedure set out in
that Protocol.
Subsidiarity
Question – who should act in particular case: the EU
or Member States? (within the area of other than
exclusive competencies):
• the affirmative statement that the EU must act
where the objectives to be pursued can be better
attained at the Union level, which enhances its
powers;
• the negative statement that it must not act where
objectives can be satisfactorily attained by the
Member States acting individually, which constrains
them.
Proportionality
Article 5
4.
Under the principle of proportionality, the
content and form of Union action shall not exceed
what is necessary to achieve the objectives of the
Treaties.
The institutions of the Union shall apply the principle
of proportionality as laid down in the Protocol on the
application of the principles of subsidiarity and
proportionality.
Proportionality
next question - the intensity and the form that the
action of the EU should take
Proportionality test:
• whether the measure was suitable to achieve the
desired end,
• whether it was necessary to achieve the desired
end
• whether the measure imposed a burden on the
individual that was excessive in relation to
objective sought to be achieved (proportionality
stricto sensu)
Proportionality
Case C-331/88 Fedesa
13 The Court has consistently held that the principle of proportionality is
one of the general principles of Community law . By virtue of that
principle, the lawfulness of the prohibition of an economic activity is
subject to the condition that the prohibitory measures are appropriate
and necessary in order to achieve the objectives legitimately pursued
by the legislation in question; when there is a choice between several
appropriate measures recourse must be had to the least onerous, and
the disadvantages caused must not be disproportionate to the aims
pursued .
14 However, with regard to judicial review of compliance with those
conditions it must be stated that in matters concerning the common
agricultural policy the Community legislature has a discretionary power
which corresponds to the political responsibilities given to it by Articles 40
and 43 of the Treaty . Consequently, the legality of a measure adopted in
that sphere can be affected only if the measure is manifestly
inappropriate having regard to the objective which the competent
institution is seeking to pursue (…)
Respect of identity of the Member
States
Article 2 EU Treaty
2. The Union shall respect the equality of Member
States before the Treaties as well as their national
identities, inherent in their fundamental
structures, political and constitutional, inclusive
of regional and local self-government. It shall
respect their essential State functions, including
ensuring the territorial integrity of the State,
maintaining law and order and safeguarding
national security. In particular, national security
remains the sole responsibility of each Member
State.
Respect of identity of the Member
States
Aspects:
• equality of Member States before the Treaties
(see: sovereign equality of states);
• national identities – constitutional and political
structure (e.g.. division powers between
national authorities, political order, language of
the State etc.)
• essential State functions (territorial integrity of
the State, maintenance of law and order,
national security).
Respect of identity of the Member
States
C-208/09 Ilonka Sayn-Wittgenstein
92. It must also be noted that, in accordance with Article 4(2) TEU, the European
Union is to respect the national identities of its Member States, which include
the status of the State as a Republic.
93 In the present case, it does not appear disproportionate for a Member State to seek to
attain the objective of protecting the principle of equal treatment by prohibiting any
acquisition, possession or use, by its nationals, of titles of nobility or noble elements which
may create the impression that the bearer of the name is holder of such a rank. By refusing to
recognise the noble elements of a name such as that of the applicant in the main proceedings,
the Austrian authorities responsible for civil status matters do not appear to have gone further
than is necessary in order to ensure the attainment of the fundamental constitutional objective
pursued by them.
94 In those circumstances, the refusal, by the authorities of a Member State, to recognise all
the elements of the surname of a national of that State, as determined in another Member
State – in which that national resides – at the time of his or her adoption as an adult by a
national of that other Member State, where that surname includes a title of nobility which is
not permitted in the first Member State under its constitutional law cannot be regarded as a
measure unjustifiably undermining the freedom to move and reside enjoyed by citizens of the
Union.
Respect of common values
Article 2
The Union is founded on the values of respect for
human dignity, freedom, democracy, equality,
the rule of law and respect for human rights,
including the rights of persons belonging to
minorities. These values are common to the
Member States in a society in which pluralism,
non-discrimination, tolerance, justice,
solidarity and equality between women and
men prevail.
Respect of common values
• Principle of democracy
• Principle of protection of human rights
• Rule of law
Principle of democracy
TITLE II PROVISIONS ON DEMOCRATIC
PRINCIPLES
• citizenship of the Union - the principle of
democratic equality,
• the principle of representative democracy,
• The principle of participatory democracy
Principle of democracy
• citizenship of the Union - the principle of
democratic equality,
In all its activities, the Union observe the
principle of the equality of its citizens, who
shall receive equal attention from its
institutions, bodies, offices and agencies.
Principle of democracy
the principle of representative democracy
• Citizens are directly represented at Union level in
the European Parliament.
• Member States are represented in the European
Council by their Heads of State or Government and
in the Council by their governments, themselves
democratically accountable either to their national
Parliaments, or to their citizens.
Principle of democracy
The principle of participatory democracy
Article 11
1. The institutions shall, by appropriate means, give citizens and representative associations the
opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative
associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order
to ensure that the Union's actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States
may take the initiative of inviting the European Commission, within the framework of its
powers, to submit any appropriate proposal on matters where citizens consider that a legal act
of the Union is required for the purpose of implementing the Treaties.
Protection of human rights
• the absence of reference to individual human
rights in the treaty establishing the EEC (1957)
• the ECJ starts with its case-law on human rights
protection: fundamental human rights
incorporated in the general principle of
community law are protected by the Court
(Stauder case, 1969)
Protection of human rights
• further steps in the case-law of the ECJ: the
sources of law used by the ECJ for the
protection of human rights
▫ constitutional traditions common to Member States
(Internationale Handelsgeselschaft case, 1970)
▫ international treaties on human rights, in particular
the European Convention on Human Rights and
Fundamental Freedoms of 1950, (Nold case, 1974)
Protection of human rights
• the recognition of human rights in the Treaty on
European Union (Maastricht, 1992)
▫ “The Union shall respect the fundamental rights, as guaranteed
by the European Convention on Human Rights … and as they
result from the constitutional tradition common to the Member
States, as general principles of Community law” (Art. F)
• the absence of a catalogue of human rights within
the EU legal order
• the European Council of Cologne (1999):
▫ “The European Council takes the view that, at the present
stage of development of the European Union, the
fundamental rights applicable at the Union level should be
consolidated in a Charter and thereby made more
evident”
Protection of human rights
• THE ADOPTION OF THE CHARTER OF
FUNDAMENTAL RIGHTS OF THE EUROPEAN
UNION (NICE, 7 DECEMBER 2000)
• the structure of the Charter:
▫ the rights are grouped under six universal values
(dignity, freedoms, equality, solidarity, citizen’s
rights, justice) and
▫ four general provisions governing the interpretation
and application of the Charter
Protection of human rights
The Treaty of Lisbon
Article 6
1. The Union recognises the rights, freedoms and principles set out in the Charter of
Fundamental Rights of the European Union of 7 December 2000, as adapted at
Strasbourg, on 12 December 2007, which shall have the same legal value as the
Treaties.
The provisions of the Charter shall not extend in any way the competences of the
Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in
accordance with the general provisions in Title VII of the Charter governing its
interpretation and application and with due regard to the explanations referred to
in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union's
competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States, shall constitute general
principles of the Union's law.
Protection of human rights
Acts of the EU institutions
▫ interpretation
▫ legality review
Acts of the Member States:
– when they are implementing EU law - 5/88
Wachauf
– when they derogate according to the provisions
on fundamental freedoms - C-260/89 ERT
Principle of sincere
cooperation/solidarity
Article 4
3. Pursuant to the principle of sincere cooperation, the
Union and the Member States shall, in full mutual respect,
assist each other in carrying out tasks which flow from the
Treaties.
The Member States shall take any appropriate measure,
general or particular, to ensure fulfillment of the
obligations arising out of the Treaties or resulting from
the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the
Union's tasks and refrain from any measure which could
jeopardise the attainment of the Union's objectives.