LAW AND POLICY OF THE EU – week 3 day 2 Exercising Powers – The Principle of Subsidiarity Exercising - and Limiting - Powers The EU is not omni-competent: - Broad values and objectives in Arts. 2 and 3 TEU. - Art. 5(1) TEU ‘The limits of Union competences are governed by the principle of conferral.’ - Art 4(1) TEU ‘…competences not conferred upon the Union in the Treaties remain with the MS’ - No Treaty base = no power to act! Looking at the limits, what are the limits of the extent of the EU’s powers to act? In the context of division of responsibility between the EU and the member states, what kind of situations can the EU act and make the secondary legislation? And when should it not act, and let the member states themselves take measures? The competences of the EU; The EU is not only competent, it cannot do everything it has some limits. It can’t do everything. There are some limits within the treaties. What can it do? ( broad values, article 5 there are limits conferral limits, article 4 what’s not conferred remain with the members states) If there is no treaty base for directives, then the EU should not act and should be left to the member states ( art 4(1) ). If it’s not in the treaties, the EU cannot act ( BASIC POINT )
Categorisation of competences (post-Lisbon) See lecture 2 Arts 3-6 TFEU : Art 3 TFEU - EU exclusive competences Art 4 TFEU – EU/MS shared competences Art 5 TFEU – MS shall coordinate their economic policies within the Union Art 6 TFEU – EU competence to carry out actions to ‘support, coordinate or supplement’ MS actions There was no clear articulation of what the EU does and what MS do before Lisbon treaty. It was decided in the treaty that there should be a clear list of what the competences of the EU are. It will make it evident to when the EU should act and where the MS should act. These amendments were made in 2009. They are categorized according to the type of EU action. Article 3( excludes MS actions ) is about the customs union, competition for internal market, monetary policy for the EU countries. It’s exclusive to the EU to act in this policy area; MS should not act in those areas. Article 4 ( MS and EU act ) sometimes the EU act, sometimes MS. Social policy is a shared competence, agriculture, environment, transport, energy, consumer protection : these are all areas of shared competence. - The EU has a test to which applies whether it should be MS that should act or EU that acts. Article 5 : coordination Article 6 : support, coordinate, or supplement MS actions. ( for instance, HEALTH , EDUCATION ) - Now , after Lisbon treaty, clearer EU catalogue about who should be doing what.
Competence disputes (turf wars) - Horizontal disputes (ie between institutions) Eg Commission and EP v Council (see previous lecture) - Vertical disputes (ie between EU and MS) The council wanted just consultation with the parliament etc. that makes the MS stronger in decision making.
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