Sunday, 17 February 2008

EU: TFEU Categories of Competence

For neat packaging and presentation you could look at the EU Law Blog posting “Reform Treaty: Taxonomy of Competence”,

http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html

taxonomy meaning a system of classification. Having offered you a succinct option, I feel less guilty about the rambling Sunday constitutional (with small ‘c’) I am going embark on concerning the different categories of EU competence, as presented in the Treaty of Lisbon (ToL).

Étienne de Poncins in “Vers une Constitution européenne" pointed out that Title III of Part I of the draft Treaty establishing a Constitution for Europe, and especially Article I-11, was based on the Laeken declaration aim to make the distribution of competences more transparent, and to answer the question: Who is responsible for what in Europe? This was to be achieved by dividing competences into three main categories: exclusive competence, shared competence and competence to carry out actions to support, coordinate or supplement the actions of the Member States (pages 102-103).

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Since the main categories of powers mentioned as well as the specialised coordination procedures are going to be treated separately (or have been, concerning the CFSP and CSDP), this posting offers an assortment of general observations, primarily based on official resources.

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Deprived of symbols and battered by two intergovernmental conferences, the achievement of the European Convention, the draft Treaty establishing a Constitution for Europe, remains a milestone in the development of the European Treaties.

The second Convention was broadly based. It drew its members from the national parliaments, the European Parliament, representatives of the heads of state or government and the Commission under the guidance of a chairman and two vice-presidents chosen by the European Council.

Most of the treaty novelties and improvements discussed lately can be traced back to the Convention. Its main contributions concern the institutional decision making of the European Union, the framing of an incipient common foreign and security policy (CFSP), including a common security and defence policy (CSDP), and a more comprehensive area of freedom, security and justice.

The draft Constitution clarified and improved on the patchwork reforms of earlier treaties. One such instance is the clear exposition of different categories of EU competence.

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The UK House of Commons Library Research Paper 07/86, 6 December 2007, “The Treaty of Lisbon: amendments to the Treaty establishing the European Community” (page 11 and 12), set out the background of the present state of different categories of competences:

“A. Union Competence

1. Defining competences

‘Competence’ is the term used to define whether the Union or the Member States has the responsibility under the EC Treaties to make decisions on a particular policy. Competence at regional or local level is not specified in the Lisbon Treaty. In defining whether the EC or the Member States have competence in any particular area or for a specific task, the terms “spheres of competence”, “shared competence”, “Community competence” and “exclusive competence” are terms used in the present Treaties, but these do not list areas of exclusive or shared competence. The following EU explanation of competences, or powers, reflects the current situation:

There are three types of powers, which depend on how they are conferred:

Explicit powers: these are clearly defined in the relevant articles of the Treaties.

Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the Community in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-Community countries in the same field (the principle of parallelism between internal and external powers).

Subsidiary powers: where the Community has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 308 of the Treaty establishing the European Community allows the Council, acting unanimously, to take the measures it considers necessary.”

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Research Paper 07/86 went on to describe the discussions during the last reform round:

“In the 2003-04 constitutional discussions, which initially included the EU institutions, Member State governments and parliaments, NGOs and a range of representatives from civil society, some participants wanted comprehensive lists setting out divisions of competence, while others preferred a more flexible approach without lists. The Lisbon Treaty, like the Constitution in 2004, contains a compromise: there are lists, but they are short and do not cover every aspect of Union activity, thereby leaving scope for interpretation. They define ‘exclusive’ and ‘shared’ competences, and areas in which the Union can provide supporting or complementary action.”

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Having presented a general view, the Research Paper continued with a presentation of the cautious UK government position:

“In its 2004 White Paper on the draft Constitution the British Government had generally welcomed the division of competences, but had been cautious about further conferral of powers on the Union. The present White Paper of July 2007 also supported the reforms in this respect, and particularly welcomed the Declaration stating that competences can be reduced, as well as increased:

The Reform Treaty will set out a more transparent and accountable structure for the EU. It includes a definition of the Union’s competences, which sets out where the EU can and cannot act. It also makes clear that Treaties can be revised to increase or reduce the competences conferred upon the EU. Therefore, the Member States would have the ability to transfer competences from the EU if they agree to do so.”



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Perhaps we should proceed with an overview of the mandate of the intergovernmental conference concerning the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU).

The IGC 2007 Mandate (Council document 11218/07, point 18) first established its predecessor, the IGC 2004 as the basis for the amendments to be made:

“18. The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).”

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The IGC 2007 then went on to enumerate the exceptions to the rule, first generally and then concerning the vertical division of powers:


“19. The following modifications will be introduced compared to the results of the 2004 IGC (see Annex 2):

a) A new Article 1 will state the purpose of the Treaty on the functioning of the Union and its relation with the EU Treaty. It will state that the two Treaties have the same legal value.

b) In the Article on categories of competences, placed at the beginning of the TEC, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.”


Footnote 10 gave further guidance:

“10 (a) The IGC will also agree a Declaration in relation to the delimitation of competences: "The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union, competences not conferred upon the Union in the Treaties remain with Member States.

When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to better ensure the constant respect for the principles of subsidiarity and proportionality. The Council may request, at the initiative of one or several of its Members (representatives of Member States) and in accordance with Article 208, the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article [IV-443] of the Treaty on European Union, may decide to amend the Treaties on which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties."

(b) The following Protocol will be annexed to the Treaties:

"With reference to Article[ I-12(2)] on shared competences, 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.”

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The (IGC 2007) duly inserted a new Title I Categories and areas of Union competence into the Treaty on the Functioning of the European Union (TFEU) and at its beginning an Article 2a, which lays out the different categories (OJ 17.12.2007 C 306/45).

12) The following new Title and new Articles 2 A to 2 E shall be inserted:

‘TITLE I
CATEGORIES AND AREAS OF UNION COMPETENCE

Article 2a TFEU (ToL), after renumbering Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. 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.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.


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Research Paper 07/86 gave the following presentation and assessment of the proposed amendments:

“The amended TFEU opens with a statement on its purpose, which is, according to amended Article 1 (Lisbon Article 1a), to organise the functioning of the Union and determine the areas, the scope of, and arrangements for exercising its competences. This Article makes clear the difference between the TFEU and the TEU, which contains intergovernmental procedures for the CFSP, treaty revision, ratification and other matters largely not subject to Union decision-making processes. There was no such Article in the Constitution. Amended Article 2 spells out that the TFEU and the TEU are the founding Treaties of the Union and have the same legal value. The present TEU and TEC are also both legally valid, although subject to different decision-making processes. The Categories and Areas of Union Competence are set out in Title 1, Lisbon Articles 2A–E (Constitution Articles I-12 to I-15 and I-17). Constitution Article I-16, on the Union’s competence in the Common Foreign and Security Policy (CFSP), the progressive framing of a common defence policy and the requirement for loyalty and mutual solidarity, remains intergovernmental and is transferred to Article 11(3) of the TEU.”

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The Swedish government’s Green Paper described the changes like this (page 143):

”Sammanfattning: Bestämmelser om indelning av unionens befogenheter i kategorier och områden införs i EUF-fördraget. Därmed blir befogenhetsfördelningen inom unionen mer överskådlig och ansvarsutkrävandet underlättas. Unionens befogenheter indelas i tre kategorier. Indelningen görs utifrån den befogenhet att lagstifta som unionen har tilldelats och beroende på om denna befogenhet tilldelats unionen ensam (exklusiv befogenhet), tillsammans med medlemsstaterna (delad befogenhet) eller om den i huvudsak omfattas av medlemsstaternas befogenhet (stödjande, samordnande eller kompletterande åtgärder).
En särskild bestämmelse införs i EUF-fördraget för att klargöra den särskilda karaktären hos samordningen av medlemsstaternas ekonomiska politik och sysselsättningspolitik.
En särskild bestämmelse införs också i EUF-fördraget för att klargöra att den gemensamma utrikes- och säkerhetspolitiken är av särskild art.
Tillämpningsområdet för flexibilitetsklausulen utvidgas och den parlamentariska kontrollen av klausulens användning stärks.”

The qualitative key words were more ’lucidity’ leading to improved ’accountability’.


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If we take a step back a few years in history, we can see that the European Convention proposed an Article I-11, already mentioned above, Categories of competence in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/10):

Article I-11
Categories of competence

1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of acts adopted by the Union.

2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States shall have the power to 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, or has decided to cease exercising, its competence.

3. The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.

4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and in the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III.

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In the Treaty establishing a Constitution for Europe the member states had agreed on the following wording in Article I-12 (OJ 16.12.2004 C 310/15):

Article I-12
Categories of competence

1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Constitution confers 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, or has decided to cease exercising, its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.

4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions in Part III relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III.

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You can make the comparison yourself; follow the drafting from the draft Constitution to the Constitution and now to the Lisbon Treaty.

My conclusion would be that once again we can see the debt of gratitude we owe the European Convention for an important improvement.

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In order to supplement this compilation of resources, we turn to some documents pertaining to the Lisbon Treaty.

The member states have agreed on the following Protocol (OJ 17.12.2007 C 306/156):

Protocol
on the exercise of shared competence

THE HIGH CONTRACTING PARTIES

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Sole Article

With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, 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.

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We also take note of two relevant Declarations, number 17 and 18 (OJ 17.12.2007 C 306/254-255):

17. Declaration concerning primacy

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the
European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

“Opinion of the Council Legal Service of 22 June 2007

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1)) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.”

[Footnote 1 then quotes the ECJ]

(1) “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”’

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In my humble opinion, it would have been more illuminating to state the well established supremacy or primacy of (EC) EU law openly, as the European Convention did in the draft Constitution:

Article 10(1)
Union law

1. The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.

The IGC 2004 followed the same principle of transparent lawmaking in Article I-6 Union law of the Constitutional Treaty:

Article I-6
Union law

The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.

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Relegating this crucial piece of information to an obscure declaration did nothing to change the fact that all the governments of the member states acknowledge of the principle of primacy, but the text of the Lisbon Treaty itself is less transparent as a result.

Perhaps nothing can console those who are most vexed at the principle of supremacy, but I would like to point out that it applies within the powers conferred on the European Union, not as a license to override or overturn national legislation or parliamentary powers in general.

And the Treaty of Lisbon does nothing to change the fact that both present and future conferral of powers to the EU remains in the hands of the member states’ governments, with approval by their parliaments.

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This is further elaborated in the other relevant Declaration of the Lisbon Treaty, which is the one on delimitation of competences (OJ 17.12.2007 C 306/254-255):


“18. Declaration in relation to the delimitation of competences

The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.

When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises 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. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.

Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, 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.”

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We can see that the European Union can not only ‘usurp’ powers from the member states, but also relinquish competences, especially if these powers can be better exercised at the member state level.

The common foreign and security policy and the common security and defence policy remain distinct areas of intergovernmental cooperation, and the provisions on competences are housed in the Treaty on European Union (TEU). I refer the interested reader to earlier postings on the TEU.

In the following TFEU instalments we are going to take a closer look at the areas where the different categories of competence are applied, the three main categories, as well as specific coordination of economic and employment policies.


Ralf Grahn


Sources:

EU Law Blog: Reform Treaty: Taxonomy of Competence; 13 January 2008;
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html

Étienne de Poncins: Vers une Constitution européenne. Texte commenté du projet de traité constitutionel établi par la Convention européenne ; Éditions 10/18, 2003 ; www.10-18.fr

UK House of Commons Library Research Paper 07/86, 6 December 2007, The Treaty of Lisbon: amendments to the Treaty establishing the European Community

Statsrådsberedningen: Lissabonfördraget; Departementsserien (Ds) 2007:48, 20 december 2007 (‘Green Paper’ of the government of Sweden)