tag:blogger.com,1999:blog-6406430766424642773.post6791881344804583032..comments2023-09-28T12:28:57.598+03:00Comments on Grahnlaw: EU: TFEU Shared competenceRalf Grahn http://www.blogger.com/profile/02156293782163802007noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-6406430766424642773.post-1974328348698766992008-03-02T10:49:00.000+02:002008-03-02T10:49:00.000+02:00Eric, your questions are very good and quite impor...Eric, your questions are very good and quite important. <BR/><BR/>As far as I remember, there were proposals during the European Convention to write an exhaustive list of EU powers, but the general consensus became that it would be impracticable. <BR/><BR/>The end result has been described as a compromise. <BR/><BR/>Since you mention the US Constitution, my first reactions are that both the US and the EU use the principle of conferred powers. <BR/><BR/>But the US Constitution, wonderful in its brevity, uses a very broad when it attributes federal powers. <BR/><BR/>On the contrary, the EC/EU treaties have been drawn up as laborious and detailed compromises between the member states within the constraints of unanimity. <BR/><BR/>The result is a straitjacket, for which the flexibility clause (requiring unanimity) provides a safety valve (if you excuse the mixed metapfhors).Ralf Grahn https://www.blogger.com/profile/02156293782163802007noreply@blogger.comtag:blogger.com,1999:blog-6406430766424642773.post-52176123100197516172008-03-02T07:21:00.000+02:002008-03-02T07:21:00.000+02:00I still don't understand the Union's rationale for...I still don't understand the Union's rationale for not supplying an exhaustive list of shared competences. The article on subsidiary and proportionality explicitly states that the Union may only act where the treaties confer power upon it. Also, there are procedures whereby the Union may amend the treaties to expand the scope of competences. In the United States an Act of Congress outside their delegated powers (conferred competences)would violate the rule against surplusage - where every word of the Constitution is to have meaning and the document may not be interpreted to give some words/clauses no legal effect. <BR/><BR/>To produce a "flexibility clause" with respect to shared competences would open up a back door, so to speak, to the Union creating additional competences without conferral and without amendment, thereby violating the conferral clause and the amendment clause. This is true even if the Union still had to overcome the burden of proving that the legislation was in accordance with the principles of subsidiarity and proportionality.<BR/><BR/>Thus, in a circumstance where the Union were to exercise a shared competence that was not conferred upon it by the Treaty, there would be no legal effect to the conferral clause and the amendment clause.<BR/><BR/>Not only does this seem logically unsound to me, but it also seemingly violates one of the major rationales for the Union amending the treaty - namely increasing the transparency of the Union for citizens. With respect to the delineation of competences, transparency entails educating the citizen as to Who (national parliaments or the Union) does what (the competences) in what circumstances.Erichttps://www.blogger.com/profile/13067985112942695931noreply@blogger.comtag:blogger.com,1999:blog-6406430766424642773.post-24758293644740972642008-03-01T16:09:00.000+02:002008-03-01T16:09:00.000+02:00Eric, you are right, as far as I understand: The s...Eric, you are right, as far as I understand: The shared competences are examples. The flexibility clause allows legislation without express mention in the TFEU, but on strict conditions, including the tests of subsidiarity and proportionality.Ralf Grahn https://www.blogger.com/profile/02156293782163802007noreply@blogger.comtag:blogger.com,1999:blog-6406430766424642773.post-45628025013725882942008-02-29T20:57:00.000+02:002008-02-29T20:57:00.000+02:00There are a few comments that I would like to make...There are a few comments that I would like to make. First, when categorizing competences the TFEU only seems to create an exhaustive list of exclusive and supplemental competences, while shared competences are "princpally" the listed items. Wouldn't that open the door for the EU to add additional shared competences? It would seem that paragraph 2 of the article on subsidiarity and proportionality would not allow such an action because all powers not conferred upon the Union remain with the States. I must say the words "principal areas" troubles me. <BR/><BR/>Second, with respect to shared competences I am a little doubtful as to how much legislation relying on such competence will have to comply with the principles of subsidiarity and proportionality. Of course, that article requires that all legislation that is not within the exclusive competence must conform to the principles of subsidiarity and proportionality. But in the same vein, Union legislation with respect to shared competences will preempt national legislation. Must the Union only be able to preempt national legislation with respect to shared competences when that legislation passes the test of subsidiarity and proportionality? I am not so sure that the ECJ would employ the current standards for subsidiarity and proportionality in such a circumstance.Erichttps://www.blogger.com/profile/13067985112942695931noreply@blogger.com