LAW AND POLICY OF THE EU u2013 week 3 day 2.docx - LAW AND...

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.