The European Integration EU Governance and Institutions

The European IntegrationEU Governance and Institutions

Prof. Giovanni [email protected]

1

Competences and Hierarchy of norms

mailto:[email protected]

European Union(S)

European Union(s)

First group: Euro-Atlantic organizationsthe Euro-Atlantic organizations came into being as a result of the alliance between the United States of America and Europe after the Second World War

1948 - OEEC (Organization for European Economic Cooperation) was created at the initiative of the United States.

1949 - NATO was founded as a military alliance with the U.S. and Canada

1954 - Western European Union (WEU) was created to strengthen security policy cooperation between the countries of Europe

1960 - The OEEC + U.S. + Canada then became the OECD

3

European Union(s)

Second group: Council of Europe and OSCE

The feature common to the second group of European organizations is that they are structured to enable as many countries as possible to participate

These organizations would not go beyond customary international cooperation

1949 – Council of Europe designed only with international cooperation in mind (ECHR)

1994 – OSCE (Organization for Security and Cooperation in Europe) includes the creation of a ‘safety net’ to enable conflicts to be settled by peaceful means

4

European Union(s)

Third group: The European Union

Member States have ceded some of their sovereign rights to the EU and have conferred on the Union powers to act independently

In exercising these powers, the EU is able to issue sovereign acts which have the same force as laws in individual States

Easy to say in theory …

5

The Treaties

1952The European Steel and Coal Community

1958The treaties of Rome:

The European Economic CommunityThe European Atomic Energy Community

(EURATOM)

1987The European Single Act: the

Single Market

1993Treaty of European Union

– Maastricht1999

Treaty of Amsterdam 2003

Treaty of Nice

2009Treaty of Lisbon

Original Aims and Objectives

• Offering its citizens freedom, security and justices without internal frontiers

• Insuring the free movement of persons, goods, services and capital

• Promoting and establishing common economic and monetary policies

7

Enlargements: 6 to 28

8

Croatia2013

Enlargments and Integration Process

More Member States

More people

More goals to be achieved

More governance issues

The 4 processes came across and went on together

9

Eastern Countries

1989 - Fall of the Berlin WallThe EU opens to Eastern European Countries

1993 – Treaty of European Union“a new stage in the process of creating an ever closer union among the peoples of Europe”

10

Preparing for the Big Enlargment

1999 – Treaty of Amsterdam

2003 – Treaty of Nice

Both focused on preserving the EU’s capacity for effective action in an Union enlarged from 15 to “n” members

11

Laeken Declaration

2001 - Declaration on the Future of the EU

“to become more democratic, transparent and effective and to open the road to a Constitution”

First time “Constitution” is used in the EU Integration process

Special Convention for drafting a Constitution

12

Ratification Process

This attempt at a Constitution failed in the ratification process

Different procedure: through National Parliaments or Referendum

France and The Netherlands voted against

Why?

13

How big are the EU countries?

Surface area in 1 000 km²Fr

ance

Spai

n

Swed

en Germ

any

Pola

nd

Finl

and

Italy

Uni

ted

King

dom

Rom

ania

Gree

ce

Bulg

aria

Hung

ary

Port

ugal

Aust

ria

Czec

h Re

publ

ic

Irela

nd

Lith

uani

a Latv

ia

Slov

akia

Esto

nia

Denm

ark

Neth

erla

nds

Belg

ium

Slov

enia

Cypr

us

Luxe

mbu

rg

Mal

ta

544

506

410

357

313

305

295

244

230

131

111

93 92 83 77 68 63 62 49

43

43 34 30

20 9 3 0.3

How many people live in the EU?

Population in millions, 2009500 million total

82.1

64.4

61.6

60.1

45.8

38.1

21.5

16.5

11.3

10.6

10.8

10.5

10.0

9.3

8.4

7.6

5.5

5.4

5.3

4.5

3.3

2.3

2.0

1.3

0.8

0.5

0.4

Fran

ce

Spai

n

Swed

enPola

nd

Finl

and

Italy

Unite

d Ki

ngdo

m

Rom

ania

Gree

ce

Bulg

aria

Hung

ary

Port

ugal

Aust

ria

Czec

h Re

publ

ic

Irela

nd

Lith

uani

a Latv

ia

Slov

akia

Esto

nia

Denm

ark

Neth

erla

nds

Belg

ium

Slov

enia

Cypr

us

Luxe

mbu

rg

Mal

taGerm

any

GDP per inhabitant

2008 GDP per inhabitantIndex where the average of the 27 EU-countries is 100

2011 EU budget: €141.9 billion

Citizens, freedom,security and justice

1%

Other, administration6%

Sustainable growth:jobs, competitiveness, regional development

46%

The EU as a global player:including development aid

6%

Natural resources:agriculture,

environment41%

How does the EU spend its money?

EU Institutions

• European Parliament• European Council• Council• Commission• Court of Justice of the EU• European Central Bank• Court of Auditors• Advisory Bodies– Economic and Social Committee– Committee of the Regions

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The European Parliament

• It shall, jointly with the Council, exercise legislative and budgetary functions

• Members shall not exceed seven hundred and fifty in number, plus the President

• No Member State shall be allocated more than ninety-six seats

• It shall elect the President of the Commission

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The European Council (EC)

• It defines the general political directions and priorities• It shall not exercise legislative functions• It consists of the Heads of State or Government, together with

its President and the President of the Commission• The EC shall meet twice every six months• The EC shall elect its President, by a qualified majority, for a

term of two and a half years• The President of the EC insures the external representation of

the Union

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The Council

• It shall, jointly with the EP, exercise legislative and budgetary functions

• It consists of a representative of each MS at ministerial level

• It shall act - normally - by a qualified majority

• Presidency shall be held on the basis of equal rotation between MS

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The Commission

• Union legislative acts may only be adopted on the basis of a Commission proposal

• Shall promote the general interest of the Union and take appropriate initiatives to that end

• Shall be completely independent• Insures the application of the Treaties• Oversees the application of Union law• Executes the budget and manage programs• Insures the Union’s external representation• The President is proposed by the Council and elected by the

Parliament 22

The Court of Justice of EU

• Includes the Court of Justice, the General Court and some specialized courts

• Rules on actions brought by a Member State, an institution or legal person or individuals

• Gives preliminary rulings, at the request of courts

• Rules in other cases provided for in the Treaties

• Shall be assisted by Advocates-General

• Judges shall be appointed by common accord of the MS governments for six years

• One judge from each Member State23

Separation of Powers

• The European Council gives general political directions, but does not have legislative power.

• Parliament and Council shares the legislative powers

• The Commission has the power of proposal and is the EU executive body

• Commissioners are proposed by the Council and appointed by the Parliament

• The Commission is responsible to the Parliament

• The Parliament can propose a motion of censure

• If it is approved by a 2/3 majority, the Commission shall resign as a body

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Legislative Power

• Parliament + Council

• 4 different types of legislative process:

– co-decision (ordinary)

– cooperation

– assent

– consultation

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Co-decision Legislative Process

• Proposal: Commission

• First reading: Parliament + Council

• Second reading (within 3 months): Parliament + (within 3 months) Council

• Conciliation

• Third reading (within 6 weeks): the Council overbears

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Majorities

• Parliament: simple majority of the members

• Council:– simple majority– qualified majority:

55% of members + 65% population72% of members + 65% population

– blocking minority:35 % population + 1 member

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EU Legislation

• Regulations– are directly applicable to MS and require no further action to have

legal effect• Directives

– which are addressed to and are binding on MS, but the Ms may choose the method by which to implement it

– generally, a MS must enact national legislation to comply with a directive.

• Decisions– which are binding on those parties to whom they are addressed

• Recommendations and Opinions– which have no binding force

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Enlargement

In 2004 took place the widest one:

– Poland, Czech Republic, Hungary, Slovakia, Lithuania, Latvia, Slovenia, Estonia, Cyprus, Malta

– wide differences: population, largeness, economical development, and political history

– EU population has increased by 27% but EU GDP by only 4%

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EU Population and GDP 2003Source: Italian EU

Presidency 2003

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Ever heard about this very dangerous man?

GDP Growth 2005-2007Source: Eurostat 2011

Socio-political consequences

• Country of Origin Principle

– providing services to consumers in another MS on the basis of the laws of the country of origin or establishment

– would have encouraged cross-border competition

• It provoked intense debate and mass protests in various MS– was a sign that "Anglo-Saxon" style economics was running

rampant over the EU– competition between workers in different parts of EU

resulting in a downward spiral in income levels– social dumping warning 33

Polish plumber

• symbol of the cheaper workers coming from Eastern Europe• comes from a speech by Bolkestein in France• became a catch-phrase during "No" camp for referendum on the EU

Constitution in 2005• many voters expressed fears that western countries would be

overrun with immigrants from new MS34

Polish plumber

• It became a fictional character for a Polish Tourism Board advertisement in France

35

Institutional consequences

• How to weight different Countries in the EU Bodies• by political relevance• by time of membership• by surface• by inhabitants• by GDP• by financial contribution to EU

36


There is currently no widely accepted normative definition of a small state.

The intuitively categorized small states do not constitute a coherent group of members according to any of the above mentioned criteria.

Finland, for instance, is geographically the fifth largest, rich and a net payer, but it has only some five million inhabitants.

If you classify Luxembourg as small with a population of 400 thousand inhabitants, you can not classify Netherlands as small in the same way with its population of 15,8 million.

Until few years ago Spain (39,4 M.) was considered as the watershed between small and large member states.

37


Those data makes us to modify the traditional meaning of small states.

New member states push the threshold of “EU state smallness” definition below.

At the same time some of the older small member states has become medium-sized with respect to the largest ones, but respectively large with respect to the new smallest ones.

38


The issue is, obviously, not the threat to be absorbed by another bigger state.

The focus point will instead be the balance of institutional powers between small and large member states in terms of seating and voting strength.

From a small states point of view, in order to prevent largest states from using the Union for pursuing their national interest only or interests common only to the largest states.

From a large states point of view, in order to prevent small states to have a weight, in terms of influence, bigger than their real one, in terms of population and economics. 39


In fact, two opposite interests exist:

larger states like to determine European policies;

small states want not to be excluded from that determination;

Both want to have the same thing: to control the future of Europe.

40


The real weight of smallest states in the European decision-making process has been their number.

This is because overwhelming majority of EU decisions in very different issues were taken - until Treaty of Nice (2001) - by a unanimity system of vote.

Thus that number became relevant in order to adopt decision requiring unanimity, because every single member state (the smallest one too) could use right of veto to stop the communitarian will to be implemented.

One head one vote? Cyprus could stop the whole EU policy?41


This is why the Intergovernmental Conference 2000 in Nice approved a Treaty reform, towards two directions:

firstly, member states agreed about widening issues in which adopting decisions by qualified majority instead of unanimity;

secondly, member states agreed about assigning to every single member state a different weight in European institutions depending on its size, its population, its capable contribution to the EU budget

broadly speaking on its relevance in the EU 42


There are three principal institutional fields where the contrast arose: • a) the distribution of seats in the European Parliament

• b) the composition and status of the Commission

• c) the weighting of votes in the Council

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Institutional consequences: Parliament

The number of seats in the Parliament has grown up to 732 (from 700)

degressive proportionality

over-representation of less populous members:• the larger the state, the more citizens that are represented

per MEP (and thus, no “1 head,1 vote” principle)• therefore, Maltese and Luxembourgian voters have about

10 times more influence than citizens of one of the six largest Countries

44

Institutional consequences: Council

Votes in the Council has been modified advantaging the most populous member states:

largest states doubled their vote-power by three -passing from 10 to 29

while e.g. Luxembourg doubled it only by two -passing from 2 to 4

in order to adopt decisions, it has been set a so called “well-pondered double majority”

requiring the agreement of the 50% or 75% of states (depending on the issue)

but also the positive vote of states representing the 62% of European population

45


46

Institutional consequences: Commission and ECJ

Every member should have -at least- one representative in the Commission and in the ECJ.

47

Consequences of Constitution failure

It has been given a strong stop to the construction of EU as a bigger political subject

Thus advocates of the pure market EU orientation prevailed

ECJ and EU laws now place economic freedoms above social rights

48

See you tomorrow!

A construction company posted workers in Germany, paying less than the prevailing German wages

The local employment office ordered the company to make payment to its workers for the difference between the two wages

ECJ declared that national minimum wage provisions, which require foreign companies to pay their workers the national minimum wage, are not precluded by EU law

Portugaia Construçoes Lda, 2002:

Viking sought to reflag one of its ships by registering it in Estonia or Norway

The union began to strike and Viking suited it

ECJ acknowledged that the right to collective action is fundamental. However, only if:

1. justified by public interest, and 2. not exceeding actions necessary to achieve the legitimate

objective 3. not inducing employer to enter into a collective agreement,

thus deterring that employer from exercising its freedom of establishment

Int'l Transp. Workers' Fed'n v. Viking Line ABP (2007)

C-341/05, Laval v. Svenska (2007)

Laval, a Latvian company posted workers in Sweden to perform construction work on a school and refused to sign a local collective agreement which would have applied to its posted workers

Svenska took collective action against the company by blockading the building site

Laval was forced to stop its construction work and sent its workers back to Latvia and declared bankruptcy

ECJ held that EU precludes a trade union from taking collective action against an employer, established in another MS which is temporarily posting workers in a host country, in order to force that employer to agree to wages in excess of those established under relevant national legislation

C-346/06, Rüffert v. Lower Saxony (2008)

A local law provides for public works to pay employees at least the minimum wage set out in the collective agreement in force where the services are performed

A Polish subcontractor was paying less than half

Lower Saxony terminated the contract and applied the penalty

ECJ was asked if EU Law prevents a state agency from hiring only contractors who agree to pay the minimum wage set out in the local collective agreement

ECJ held that such a legislative measure is a violation of the fundamental economic freedom under EU Law

– Cons• threat to workers' rights and fair working conditions in EU• unfair competition from countries with lower labor costs• no protection for local employers and workers

– Pros • extend the EU fundamental freedoms• will benefit SMEs• services account for over ⅔ of EU GDP and employment • better functioning services markets should therefore

enhance the competitiveness of EU economy

C-346/06, Rüffert v. Lower Saxony (2008)

Maastricht Treaty

1. Introduced the three-pillar structure2. Introduced the co-decision legislative procedure giving the

EP:a. more control over legislation to passb. the right to request the Commission to initiate legislationc. the power to block the appointment of the new Commission

3. Established the principle of subsidiarity4. European citizenship5. Foundations for euro6. Expanded existing area of EU competence

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European Communities (Maastricht)

56

Common provision:principles, goals, institutions

1ST PILLAR 3RD PILLAR2ND PILLAR

1) Eur. Economic Community2) Eur. Coal and Steel Comm3) Eur. Atomic Energy Comm.community integration

method

Common Foreign and Security Policy

CFSP

Police and Judicial cooperation in Criminal matters

intergovernmental method

intergovernmental method

EU Internal Sovereignty

• EU has not a native Sovereignty (S)

• Member States keep their own S as “States” over EU

• However when MS joined the EU they abdicated part of their S

Fundamental Principles

58

Fundamental Principles

• Conferral– competences are conferred on EU by MS

– MS keep competences not conferred on EU

• Subsidiarity– EU shall act only if and so far goals cannot be sufficiently

achieved by MS

• Proportionality– EU shall not exceed what is necessary to achieve objectives of

the Treaties59


Art. 5(2) TEU establishes 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.


• Art. 5 (2) prior to Lisbon Treaty provided insufficient protection to MS’s rights

• Especially because of implied powers clause

– gave to EU further powers in order to achieve EU objectives– ECJ adopted a wide interpretation of it– given goals (instead of powers) imply the existence of powers

reasonably necessary to attain them– see Germany vs, Commission– see Commission vs. Council

Germany vs. Commission 1985

• ECJ ruled that:

when the Treaties confer a specific task on the Commission it must be accepted that it confers on the Commission, necessarily and per se, the powers indispensable to carry out that task

Commission vs. Council 2005

Neither criminal law nor criminal procedure fall within EU competence, however

this not prevent EU legislature from taking measures related to criminal law when it is an essential measure for combating serious environmental offences

Recent rulings

The Court of First Instance

o in 2007 and 2009 ruled that

it is only exceptionally that such implicit powers are recognized to ensure practical effect of the provisions of the Treaty

o It suggests an ongoing change toward a narrower interpretation of implied powers, but the issue will be on:o the interpretation of Treaty provisionso how much their effects have to be practical

Competences

Art. 2 TFEU establishes different kinds of competences

– Exclusive– Shared– Supporting, coordinating and supplementary– Economic, employment and social policy– Common foreign and security policy and defence

Exclusive competence

Art. 2(1) TFEU establishes that:o only the Union may

o legislate o adopt legally binding acts

o MS may legislateo only if EU empowers them to do soo it is requested for the implementation of EU acts

o both for internal and external exclusive competences

Exclusive Internal competence

Art. 3 TFEU provides 5 areas of internal exclusive competence:

1. customs union

2. competition and internal market

3. monetary policy for MS which use €

4. marine biological reserve

5. common commercial policy


Internal exclusive competence granted by Art. 3 TFEU

o it is full and absolute EU competenceo only EU can decide to give parts of these powers back

to the MSo apart from the MS’s power to strictly carry out EU

legislation


Art. 3 TFEU puts EU in a very comfortable position:

o makes MS very dependent on Community methodo it is up to the EU Institutions to decide whether or not

give back to MS the authority they have cededo since MS are not competent it logically follows that they

cannot exercise these non-existing powers eithero in case of inertia of EUowhere EU has decided to no longer exercise powers in

an area of exclusive competenceowhere regulations or directives were repealed


Art. 3 TFEU puts MS in a very uncomfortable positionthus they try to protect themselves:

o not having a direct interest in the exact delimitation of EU exclusive powers

o having instead an interest in the exact choice of competence and legal bases becauseo decision-making procedures for exercising powers may be

differento even if two legal bases fall within the same category of

exclusive competenceo e.g. unanimity vs qualified majority in the Council


For example:

Monetary policy area falls within the EU exclusive competenceo however it is composed of numerous legal bases

o different legal bases request different majoritieso the higher is the requested majority the more MS are protected against

the exercise of EU powers

o different legal bases may also request different decision-making process o co-decision or co-operationo it may also be a prerequisite for the ECJ to actually annul the contested

act if it was based on an incorrect legal basis

o see C-491/01 and C-211/01

Exclusive External competence

Art. 3(2) TFEU sets out a conditional exclusive external competence for the conclusion of international agreement

This is another typical point of interest for Federal States

Because it is related to external sovereignty


Pre-Lisbon (1)

o ERTA (1970):o ECJ held that when the Community acted to implement a

common policy, MS no longer had the right to take external action where this would affect the rules thus established or distort their scope

o Kramer (1976):o ECJ held that the EC could possess implied external powers

even though it had not yet taken internal measures, but that until the EC exercised its internal power MS retained competence to act, provided that their action was compatible with Community objectives


Pre-Lisbon (2)

o Inland Waterways (1976):o ECJ held that the EC could have exclusive external competence, even though it had not exercised its internal powers, if MS action could place in jeopardy the Community objective sought to be attained.

o WTO Agreement (1994):o ECJ held that exclusive external competence was in general dependent on the actual exercise of internal powers and not their mere existence.


Pre-Lisbon (3)

o Open skies (2002):o Commission alleged that Member States had infringed the

Treaty by concluding bilateral ‘open skies’ agreements with the USA, on the ground that the EC had exclusive external competence in this area.

o ECJ held that the ERTA ruling could apply to internal power exercised in this manner, and therefore the EC had an implied external competence. It followed that when the EC made common rules pursuant to this power, MS no longer had the right, acting individually or collectively, to undertake obligations towards non-MS which affected those rules or distorted their scope.

That transformed external competence into exclusive external competence.


Post-Lisbon (1)

Art. 3(2) TFEU sets out a conditional exclusive external competence

o for the conclusion of international agreement

o when its conclusion:

o is provided for in a legislative EU acto is necessary to enable EU to exercise internal competenceomay affect rules or alter their scope


Post-Lisbon (2)

o Article 3(2) TFEU does not state that:

o EU shall have such exclusive external competence only in the areas in which it has an exclusive internal competence

o It states that where the conclusion of an international agreement is provided for in a legislative act, the Union will have exclusive external competence.

o MS are pre-empted from:o concluding any such agreement independentlyo legislating or adopting any legally binding act


Post-Lisbon (3)

“is necessary to enable EU to exercise internal competence” means that

• EU has exclusive external competence to conclude an international agreement:

– where it is necessary to enable the Union to exercise its competence internally

– irrespective of the type of internal competence granted by the Treaties

– either exclusive, shared or supporting


Post-Lisbon (4)

“may affect common rules or alter their scope” means that

• every time EU has exercised its power internally it will be held to have an exclusive external competence

• this is the widest provision and include all the previous ECJ case-law

• there is no way for EU not to have exclusive external competence

• there are no more chances for MS to join mixed agreements

Shared Competence

Art. 2 TFEU establishes different kinds of competences

– Exclusive– Shared– Supporting, coordinating and supplementary– Economic, employment and social policy– Common foreign and security policy and defence

Shared Competence

Art. 2(2) TFEU:

• When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area.

• The Member States shall exercise their competence to the extent that the Union has not exercised its competence.

• The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

Shared CompetenceArt. 4 TFEU:• 1. The Union shall share competence with the Member States where the Treaties confer on it a

competence which does not relate to the areas referred to in Articles 3 and 6.

• 2. Shared competence between the Union and the Member States applies in the following principal areas:(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.

• 3. In the areas of research, technological development and space the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

• 4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

Shared Competence• Shared competence is the general residual

category

1. topics not included either in art. 3 or art. 6

• art. 3 subject matters of exclusive competence:

customs union;competition for the functioning of the internal market;monetary policy for MS which use €;marine biological reserve;common commercial policy.

•art. 6 subject matters of supporting, coordinating or supplementing competenceprotection and improvement of human health; industry, culture, tourism; education, vocational training, youth and sport;civil protection;administrative cooperation.

Shared Competence

2. principal areas (not exhaustive):internal market;

social policy, for the aspects defined in this Treaty;economic, social and territorial cohesion;agriculture and fisheries, excluding the conservation of marine biological resources;environment;consumer protection;transport;trans-European networks;energy;area of freedom, security and justice;common safety concerns in public health matters, for the aspects defined in this Treaty

Shared Competence

3. areas of research, technological development and space• the Union shall have competence to carry out activities, in

particular to define and implement programmes;

4. areas of development cooperation and humanitarian aid• the Union shall have competence to carry out activities and

conduct a common policy;

however, • the exercise of those competences (3-4) shall not

result in MS being prevented from exercising theirs• thus not only the competence but even its exercise is

shared into these shared competence topics

Shared Competence: preemption effect

– The Member States shall exercise their competence to the extent that the Union has not exercised its competence

Consequences:

• if EU does not exercise its competence, MS may legislate broadly

• actually MS competence is generally going to decrease over time

• EU (adopting acts) decides how much competence is left to MS

– hard & soft laws

– strictly, flexible, in-between

no longer exercising competences

• Strictly– MS cannot legislate at all– MS have to withdraw their legislation in force– worse than exclusive competence (MS may at least adopt implementation acts)

• Flexible– MS are merely prohibited from acting contrary to or in violation of EU secondary

legislation– MS have only to respect the priciple of supremacy

• In-between– MS are prevented from adopting, or keeping in force, national legislation which

negatively affects the EU secondary legislation, or which alters their scope– stems from ERTA case-law– give the ECJ to decide on a case-by-case basis


ECJ legal arguments will based on:1) real limits must be found in detailed provisions of every

single EU act in the shared competence areas2) it depends on how (to what extent) EU exercises its

competenceuniform regulationharmonizationminimum harmonizationmutual recognition

3) the less wide and detailed is the EU legislation, the more power is up to MS

4) thus the nature of “sharing” is not the same in all the areas


5) it is expressly provided the case the EU ceases to exercise its competence

6) in this case the (shared) competence returns to the MS

7) artt. 4 (3-4) TFEU give MS competence even if EU has already exercised its authority within these areas

8) Art. 2(6) TFEU states that ‘the scope of and arrangements for exercising the Union’s competences shall be determined by the provisions of the Treaties relating to each area’

Protocol on Shared Competence

• Protocol No. 25 / 2007

– when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area

Declaration on Ceased Shared Competence

• Declaration No. 18 / 2007 1. When the relevant EU institutions decide to repeal a legislative act, in

particular better to ensure constant respect for the principles of subsidiarity and proportionality.

2. The Council may, at the initiative of one or several of its members (representatives of MS) request the Commission to submit proposals for repealing a legislative act.

3. Equally, the representatives of the governments of the MS, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.

eu-ms disputes widening

• Exclusive competence = horizontal disputes– between EU institutions– between Community and intergovernmetal method– between EU and MS

• Shared competence = vertical disputes– directly involving EU and MS

• ECJ:– for so many areas fall into the shared competence– even within them the legislative procedure may be different– its role regarding shared competences will certainly remain the most important one

complementary competences

• Art. 2 (5) TFEUEU may take actions to:– support– coordinate– supplement

MS actionso without superseding MS competenceso without bringing harmonization of MS laws

in areas listed in art. 6 TFEU (not exhausitve)protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; administrative cooperation


• EU may complement national action

• MS must coordinate their policiesin liaison with the Commission

• Commission can coordinate action by exchanges of – best practice– periodic monitoring– evaluation


• It seems to be less binding for MS, but:

• EU role should not be underestimated• harmonization is not allowed

– but it is not clear what harmonization exactly means• EU found significative ways to force MS:

1. persuasive soft law: • periodic monitoring and comparative evaluation• awarding best practices for PA

2. legal incentive measureso giving money to compliant MS

economic, employment andsocial policy

Art. 5 TFEU• 1. The Member States shall coordinate their economic policies within the

Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific provisions shall apply to those Member States whose currency is the euro.

• 2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.

• 3. The Union may take initiatives to ensure coordination of Member States’ social policies.

economic, employment andsocial policy

• It is a separate competence– not easy to define and explanation was political– there would have been significant opposition to:

1. include it within shared competence

with the consequence of pre-emption of state action when the EU exercised power within this area.

2. include it within complementary competence

because it was too weak

– this is why it was created a separate category– and its placement after shared power, but before the category of

complementary actions

common foreign and security policy and defense

• they constituted the 3° Pillar• now they are a separate head of competence

• this is a topic more intergovernmental

• it is hard to include it on any type of competence because none of them is a good fit

• decision-making process is entirely shared between the European Council and the Council

flexibility clause

Artt. 352 and 114 TFEU substituted

Artt. 308 and 95 EC

Art. 352 broad terms of ‘policies defined in the Treaties’ (with the exception of the CFSP) It can therefore serve as the basis for competence in almost all areas of EU law The unanimity requirement means however that it will be more difficult to use this power in an enlarged EUalso requires the consent of the European Parliament, as opposed to mere consultation (308 EC)

Flexibility Clause

• German Constitutional Court 2/08

• stipulated that the exercise of any such competence constitutionally required ratification by the German legislature

Harmonization Clause

• Art. 114 TFEU (same as Art. 95 EC)

• Introduction of the Impact Assessment Report• it addresses:

– the nature and scale of the problem; the views of stakeholders; whether the EU should be involved; the objectives of any such involvement; the main policy options for reaching these objectives, including their relative effectiveness/efficiency; and the likely economic, social, and environmental impacts of those option

• It also includes the subsidiarity calculus

Subsidiarity Principle

• Art. 5 (3-4) TEU

• Protocol on the role of National Parliaments in the EU

• Protocol on the application of the principle of subsidiarity and proportionality

The European Integration EU Governance and Institutions

Documents

Transcript of The European Integration EU Governance and Institutions