EU Law Competence Short
Models of Integration
Art 2(1) – exclusive competence (dual federalism)
Art 2(2) – shared competence (co-op federalism)
Art 2(3)-(5) – no legislative competence but primacy if conflict arises
Art A TEU – tension: EU integration v preservation of nat. identity & autonomy
Art 4 TEU – more explicit on preserving nat. autonomy/deference to nat. authorities
Remit of Legal Authority
Doctrine of conferred powers (Art 5(1))
Flexibility provision (Art 352(1)) – potential to be used for creating a gapless system of competencies… how far it will
go depends on ECJ interpretation. If too wide, it leaves areas excluded from Treaty at risk of intrusion.
Signs of safeguarding nat. constit. identities Germany: 352(1) is wide, if used, will require approval of Parl.
chambers + can’t be used in central areas of crim. law, social policy, religion
Limits of EU law making
1. Competence – does Comm. have legal basis to act? (Art 5(1) + Art 362(1))
2. Subsidiarity & proportionality – exercise of those powers (Art 5(3) + 5(4))
Legal – See the Abogados de accidentes blog
1. Is Comm. legislator acting within its competence must identify specific legal basis for the action in Treaty
Technique of attribution highly specific & though some bases (e.g. Art 114 TFEU) are open ended & broad,
yet not completely uncontrolled
2. Has it acted on correct legal basis?
Dir. went outside Art 114 (‘internal market’) into ‘public health regulation’ = no correct legal basis
o Germany v Parl. & Commission – Tobacco Ad Dir. under Art 114 imposed complete ban on
advertising & sponsorship of tobacco products in EC. ECJ: designed to regulate public health, not
promote operation of IM = void. Harmonising IM measures must be market making.
Art 114 Threshold
a. obstacles to trade
b. appreciable distortions of competition
c. how will proposed measure address these
Comm. drew up a narrower ban = valid, even though incidentally harmonised public health laws too
o Tobacco Advertising II–Comm. followed guidance, narrower, not blanket, ban = Art 114 valid legal
basis. Incidental harmonisation of public health laws permissible, since market making measure.
Weatherhill: expansionism is the key trend. Legislative competence ltd in principle but broad
If Dir. meets 114 threshold, even though public health considerations are “decisive matter”, it has a
correct legal basis
o Swedish Match – Labelling Dir. under 114 prohibited marketing tobacco for oral use; Swed. Company
wanted to export to UK, where banned (Sw. had exception) – unsuccessful challenge. ECJ: when ban
was introduced, some MS already legislated + public health concerns suggested more will legislate, so
eventually would distort competition/impact free movement of goods. Dir. introduced to eliminate
these likely risks.
If Dir. meets 114 threshold, reliance on health concerns doesn’t deprive it from valid legal basis
o Alliance for Natural Health – different food supplement laws = clear distortion of IM which Dir.
eliminates. Need direct effect on functioning of IM, not mere finding of disparities, like in Tobacco I.
Weatherhill: competence conferred isn’t static – depends on nat. reg. practices + reported
impact on economic operators. Relatively easy for Comm. to manipulate threshold criteria,
relatively hard for ECJ to obtain independent evidence of the impact.
If Dir. meets 114 threshold, Comm. legislature can rely on it, even for consumer protection
o Vodafone – roaming reg. capping charges imposed by mob. phone operators on consumers for
roaming services within EU argued by Vod. to be invalid b/c no correct legal basis + disproportionate
+ offend subsidiarity. AG Maduro didn’t think 114 threshold met but ECJ did. ECJ: Reg. adopted in
response to likelihood of diverging price control measures = classic preventative harmonisation &
improvement of IM conditions.
Weatherhill: court decided the case by ref to EU institutions own observations & attachments
to measure – failed to be an outside observed but instead aligned itself with institutions whose
acts were being challenged by C.
In practice, case law on competency has become a drafting guide for legislature which now finds it all too easy to
ensure compliance in a manner unreviewable in practice…