European Union Powers

Powers of the European Union

Content about European Union Powers from the publication “The ABC of European Union law” (2010, European Union) by Klaus-Dieter Borchardt.

The Treaties establishing the EU do not confer on the Union institutions any general power to take all measures necessary to achieve the objectives of the Treaty, but lay down in each chapter the extent of the powers to act. As a basic principle, the EU and its institutions do not have the power to decide on their legal basis and competencies; the principle of specific conferment of powers (Article 2 TFEU) continues to apply. This method has been chosen by the Member States in order to ensure that the surrender of their own powers can be more easily monitored and controlled.

Context of European Union Powers in the European Union

The range of matters covered by the specific conferment of powers varies according to the nature of the tasks allotted to the EU. Competences which have not been transferred to the EU remain in the exclusive power of the Member States. The EU Treaty explicitly states that matters of national security stay under the exclusive authority of the Member States.

Categories of competences of the European Union Powers

This naturally begs the question of where the dividing line is between EU competences and those of the Member States. This dividing line is drawn on the basis of three categories of competence:

Exclusive Competence

Exclusive competence of the EU (Article 3 TFEU) in areas where it can be assumed that a measure at EU level will be more effective than a measure in any Member State that is not coordinated. These areas are clearly set out and comprise the customs union, the establishing of the competition rules necessary for the functioning of the internal market, the monetary policy of the euro States, the common commercial policy and parts of the common fisheries policy. In these policy areas only the European Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the European Union or for the implementation of Union acts (Article 2(1) TFEU);

shared Competence

Shared competence between the EU and the Member States (Article 4 TFEU) in areas where action at European level will add value over action by Member States. There is shared competence for internal market rules, economic, social and territorial cohesion, agriculture and fisheries, environment, transport, trans-European networks, energy supply and the area of freedom, security and justice, and also for common safety concerns in public health matters, research and technological development, space, development cooperation and humanitarian aid. In all these areas the EU can exercise competence first, but only with regard to matters laid down in the relevant Union instrument, and not to the entire policy area. The Member States exercise their competence to the extent that the EU has not exercised, or has decided to cease exercising, its competence (Article 2(2) TFEU). The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to respect the principles of subsidiarity and proportionality. The Council may, on the initiative of one or more of its members, request that the Commission submit proposals for repealing a legislative act;

Competence to carry out supporting action (Article 6 TFEU)

The EU’s competence to carry out supporting action is limited to coordinating or providing complementary action for the action of the Member States; the EU cannot harmonise national law in the areas concerned (Article 2(5) TFEU). Responsibility for drafting legislation therefore continues to lie with the Member States, which thus have considerable freedom to act. The areas covered by this category of competence are protection and improvement of human health, industry, culture, tourism, education, youth, sport and vocational training, civil protection and administrative cooperation. In the areas of employment and economic policy, the Member States explicitly acknowledge the need to coordinate national measures within the EU.

Competences

It should be noted that the EU’s competences in the area of coordination of economic and employment policy and in the area of common foreign and security policy do not fall under any of these three categories, and therefore do not belong to this set of competences. However, a declaration is made stating that the EU’s common foreign and security policy will not affect the Member States’ competence for their own foreign policy and national standing in the world. In addition to these special powers to act, the Union Treaties also confer on the institutions a power to act when it is essential for the operation of the single market or for ensuring undistorted competition (see Article 352 TFEU – dispositive powers or flexibility clause). These articles do not, however, confer on the institutions any general power enabling them to carry out tasks which lie outside the objectives laid down in the Treaties, and the Union institutions cannot extend their powers to the detriment of those of the Member States. In practice, the possibilities afforded by this power were used very often in the past, since the EU was over time faced repeatedly with new tasks that were not foreseen at the time the founding Treaties were concluded, and for which accordingly no appropriate powers were conferred in the Treaties. Examples are the protection of the environment and of consumers or the establishment of the European Regional Development Fund as a means of closing the gap between the developed and underdeveloped regions of the EU. Now, however, specific jurisdiction has been given in the abovementioned fields. These specific provisions have meant that the practical importance of the dispositive powers has very much declined.

Exercise of Powers

The exercise of these powers requires the approval of the European Parliament. Finally, there are further powers to take such measures as are indispensable for the effective and meaningful implementation of powers that have already been expressly conferred (implied powers). These powers have acquired a special significance in the conduct of external relations. They enable the EU to assume obligations towards non-member countries or other international organisations in fields covered by the list of tasks entrusted to the EU. An outstanding example is provided by the Kramer case ruled on by the Court of Justice. This case concerned the EU’s capacity to cooperate with international organisations in fixing fishing quotas and, where considered appropriate, to assume obligations on the matter under international law. Since there was no specific provision laid down in the Treaty, the Court inferred the necessary external competence of the EU from its internal competence for fisheries policy under the common agricultural policy.

However, in the exercise of these powers, the EU is governed by the subsidiarity principle, taken over from Roman Catholic social doctrine, which has acquired virtually constitutional status through being embodied in the EU Treaty (Article 5(3)). There are two facets to it: 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; and the negative statement that it must not act where objectives can be satisfactorily attained by the Member States acting individually, which constrains them. What this means in practice is that all Union institutions, but especially the Commission, must always demonstrate that there is a real need for common rules and common action. To paraphrase Montesquieu, when it is not necessary for the EU to take action, it is necessary that it should take none. If the need for Union rules is demonstrated, the next question that arises concerns the intensity and the form that they should take. The answer flows from the principle of proportionality that has entered Union law through the decisions of the Court of Justice of the European Union, and is established in the EU Treaty in conjunction with the competence provisions (Article 5(4)). It means that the need for the specific legal instrument must be thoroughly assessed to see whether there is a less constraining means of achieving the same result. The main conclusion to be reached in general terms is that framework legislation, minimum standards and mutual recognition of the Member States’ existing standards should always be preferred to excessively detailed legal provisions.

National parliaments can also now check compliance with the principles of subsidiarity and proportionality. For this purpose, an early warning system has been introduced, allowing national parliaments to issue a reasoned position within eight weeks following transmission of the legislative proposal, setting out why the legislative proposal in question does not meet the subsidiarity and proportionality requirements. If this reasoned position is supported by at least a third of the votes allocated to the national parliaments (where each national parliament has two votes, or, in the case of chamber systems, one vote per chamber), the legislative proposal must be reviewed again by the institution that issued it (usually the Commission). Following this review, the proposal can be retained, amended or withdrawn. If the European Commission decides to retain the draft, it must issue a reasoned opinion, stating why it considers the draft to follow the subsidiarity principle. This reasoned opinion is sent to the EU legislator together with the reasoned opinions of the national parliaments so that they can be taken into account in the legislative procedure. If, by a 55 % majority of the Members of the Council of the EU or by a majority of the votes cast in the European Parliament, the EU legislator is of the opinion that the proposal does not comply with the subsidiarity principle, the legislative proposal is not examined any further.

In General

The European Union, which succeeded the European Community, was established by the EU Treaties – see further below. The parties to the treaties are the Member States of the EU – currently there are 28 Member States (27 excluding the United Kingdom). Under the treaties the Member States confer competences on the EU – such as the power to adopt legislation. The EU can only act within the limits of its competences.

The EU has a number of institutions, such as the European Council, the Council of Ministers, the European Commission and the European Parliament. Acting together or separately, these institutions pass laws (such as regulations, directives or decisions), which may take effect automatically in the UK’s legal systems or require the UK to pass national legislation to give effect to the EU laws. The Member States may also be affected by the treaties themselves, which may restrict what the UK can do, for example, restricting the Member States’s power to limit imports from other Member States.

The Court of Justice of the European Union interprets the treaties and the laws which the EU passes and decides if Member States have abided by them.

There are two key EU treaties, which have been amended several times. They are the Treaty on the European Union (‘TEU’, originally the Maastricht Treaty), and the Treaty on the Functioning of the European Union (‘TFEU’, originally called the Treaty of Rome). The treaties are effective in the UK by virtue of the European Communities Act 1972, as amended.