Tamara Ćapeta
2014
 Comparable
to evolutive federations :
Article 1 TEU:
 “By this Treaty, the HIGH CONTRACTING
PARTIES establish among themselves a
EUROPEAN UNION, hereinafter called
‘the Union’ on which the Member States
confer competences to attain objectives
they have in common.”
Article 5 TEU:
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.”
to federal states – eg. US – the
principle of enumerated powers
 Similar
 Constitutional
-
nature of the principle of
conferral: the consequence of the
inexistence of power is invalidity of a legal
norm adopted by the EU
Principle of conferral subject to judicial
control
Article 4/1 TEU:
 “In accordance with Article 5, competences
not conferred upon the Union in the
Treaties remain with the Member States.”
(repeated in Article 5/2 TEU)
 Reasons?
 Creeping
competences (comp. US)
 Only
one decision declaring an EU act void
because of the lack of EU competence :
Case C-376/98 Tobacco Advertising
 Background
: Kompetenz-Kompetenz
doctrine of the German
Bundesverfassungsgericht
 Novelty
3
of the Lisbon Treaty
types of EU powers (Article 2 TFEU)
• Exclusive
• Shared
• Complementary
(Additionally: Economic and Employment policies
and the CFSP)
 only
the Union may legislate and adopt
legally binding acts, while Member States
lost regulatory competence
 MS cannot act even if EU has not yet
regulated
 MS can enact implementing measures if
so demanded by the EU act
 For the first time exclusive powers are
exhaustively enumerated in the Lisbon
Treaty
Article 3 TFEU


1. The Union shall have exclusive competence in the following
areas:
(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.
2. The Union shall also have exclusive competence for the
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.
 both
the Union and the Member States
may legislate and adopt legally binding
acts in the area at issue
 Pre-emptive competences: once the EU
has exercised its competence to regulate
in certain area, MS cannot regulate any
more
 Parallel shared powers: even if EU has
regulated certain issue, MS can still
regulate
Enumerated by the Lisbon Treaty in exemplary, not-exhaustive
way (Article 4 TFEU):

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(a) internal market;
(b) social policy, for the aspects defined in this 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 this Treaty.
 EU
has competence to carry out actions to
support, coordinate or supplement the
actions of the Member States, without
thereby superseding their competence in
these areas.
 In these areas, EU cannot harmonise
national laws by legally binding acts
Article 6 TFEU:
 (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
 Aims
of particular politcies, their scope and
their limits are described in different
provisions scattered throughout the Treaties
 Subject to interpretation:
• By EU institutions, primarily Commission which
proposes the act, but also the Council and the EP that
adopt it
• Interpretation influenced by the position of the
Memeber States sitting in the Council
• Last word in the interpretation of the content and the
limits of a power is given to the CJEU
 Due
to the principle of conferral, each EU act
need to have legal basis in the Treaties (TEU
or TFEU)
 The lack of the legal basis or wrong legal
basis result in the legal invalidity of a
measure
 Legal basis – Treaty provision which contains
certain concrete EU power and determines at
the same time the type of procedure in which
a measure is to be adopted and the
institutions that participate in its enactment
Article 114/1 TFEU
 Save where otherwise provided in the Treaties, the
following provisions shall apply for the
achievement of the objectives set out in Article 26.
The European Parliament and the Council shall,
acting in accordance with the ordinary legislative
procedure and after consulting the Economic and
Social Committee, adopt the measures for the
approximation of the provisions laid down by law,
regulation or administrative action in Member
States which have as their object the
establishment and functioning of the internal
market.
Article 113 TFEU:

The Council shall, acting unanimously in
accordance with a special legislative procedure
and after consulting the European Parliament and
the Economic and Social Committee, adopt
provisions for the harmonisation of legislation
concerning turnover taxes, excise duties and other
forms of indirect taxation to the extent that such
harmonisation is necessary to ensure the
establishment and the functioning of the internal
market and to avoid distortion of competition.
 Subject
to judicial review by the CJEU
 Cases about the right choice of the legal
basis:
• Battle for the vertical division of powers: EU – MS
(C-376/98 Tobacco Advertising)
• Battle for the powers among the institutions –
determine the inter-institutional balance in the EU
(C-176/03 Environmental Penalties);
 If
EU has shared power, it still does not
mean that it can regulate specific issue
 This depends on the principles of
subsidiarity and proportionality
 These principles are also of constitutional
nature and their violation results in the
invalidity of the adopted measure
 Application
of subsidiarity and
proportionality regulated by the Protocol
 Subject
to judicial control
of the Lisbon Treaty – inclusion of
national parliaments in the control of
subsidiarity
 Novelty