Woodrow Wilson School of Public and International Affairs at Princeton University

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The Jean Monnet Program

Professor J.H.H. Weiler

European Union Jean Monnet Chair

in cooperation with the

Woodrow Wilson School of Public and International Affairs at Princeton University

Provost Christopher L. Eisgruber

Laurance S. Rockefeller Professor of Public Affairs

Altneuland: The EU Constitution in a Contextual Perspective

Jean Monnet Working Paper 5/04
Franz Mayer

Competences- Reloaded? The Vertical Division of Powers in the EU after the New European Constitution

Papers included in this collection should be cited according to the following format.

Franz Mayer, Competences-Reloaded? The Vertical Division of Power in the EU after the New European Constitution, in Weiler and Eisgruber, eds., Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04, [http://www.jeanmonnetprogram.org/papers/04/040501-16.html]

All rights reserved.

No part of this paper may be reproduced in any form

without permission of the author.

ISSN 1087-2221

© Franz Mayer 2004

New York University School of Law and

Woodrow Wilson School of Public and International Affairs at Princeton University

Competences – Reloaded?

The vertical division of powers in the EU

after the new European constitution

Franz C. Mayer *


Following the constitutional debate before, during and after the 2002/2003 Convention, one could easily have a sense of déjà vu. More or less similar European debates on lists of competences, subsidiarity, a competence court etc. had taken place before. The vertical division of powers is a recurring issue of European constitutional law.1

What’s wrong with déjà vus? There is a movie from 1999 called The Matrix,2 which depicts a future where machines have gained control over the earth and human beings are kept in some kind of permanent dream world. In this computer generated virtual reality controlled by the machines, a déjà vu that occurs is usually considered “a glitch in the Matrix”.3 Such a déjà vu can be understood as some kind of system malfunction, but to the extent that it is generated by the machines, it may also be regarded as a mere feature of the system.

Does the fact that the competence issue keeps recurring indicate that there is a systemic malfunction of the ‘Matrix’ in the EU? Or is the recurring debate about European powers and competences an in-built feature of European integration?

It seems to me that to some extent, there has been a false debate, insofar as the debate was mainly on how to solve the competence problem. I would argue that the competence issue cannot be ‘resolved’, as the competence issue is in fact a debate on the reach and the purpose of European integration.4 I will develop this approach to the competence issue in two steps.

After a brief look at the previous – current – 5 system as laid down in the founding treaties and the work of the Convention (I, II), a first level of analysis will try to assess the competence provisions of the new Constitution 6 in the light of the pre-Convention debate on European competences (III).

A second level of analysis will try to go beyond a narrow understanding of competence as merely legislative competence (IV). There is some evidence that what frequently comes along as a problem of competences is actually about issues outside the realm of legislation, which raises the question of how the Convention dealt with this type of issues.

I will conclude with the perspective that the competence issue is likely to come back.

I. Powers and competences in the founding treaties pre-Convention

1. Competences?

The pre-Convention terminology seems to ignore the term ‘competence’. Instead, the English word normally used is ‘powers’, as in Art. 5 para. 1 EC. ‘Powers’ is also the term used in Declaration No. 23 annexed to the Nice Treaty,7 the document that was the starting point for the process that led to the Constitution. “Competences” 8 has been called “Euro-speak”.9 In an EU context it seems to be a hasty translation from German Kompetenz,10 which has come to be part of EU constitutional law vocabulary:11 this is indicated by the fact that ‘Competences’ is the term used throughout the Convention deliberations and in the Constitution.12

However, the term ‘power’ is also used in the Constitution. It appears in the Thucydides-quote at the beginning of the Convention’s Draft Constitution 13 and in the flexibility clause, Art. I-18 para. 1.14 There is even one provision where both terms ‘powers’ and ‘competences’ are used: “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” (Art. I-12 para. 2,15 emphasis added). Art. I-19 para. 2 16 states “Each Institution shall act within the limits of the powers conferred on it in the Constitution“. According to Art. I-30 para. 3,17 the European Central Bank exercises “powers”. Art. I-32 para. 5 18 refers to the Committee of the Regions‘ and the Economic and Social Committee’s “powers“. Art. I-37 para. 2 19 is about “implementing powers” of the Commission. The Preamble of the Charter (Part II of the Constitution) refers to “the powers and tasks of the Union“. Art. II-111,20 which is about the field of application of the Charter, requires that Member States respect “the limits of the powers of the Union as conferred on it in the other Parts of the Constitution“. It also states that “This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution“.

All this might be developed into a conceptual differentiation,21 e.g. a distinction between competence and powers in the sense of competence being merely the legislative aspect of powers. But maybe it is just a terminological problem related to translation, as Part III seems to indicate.22

2. The current system: enumerated competences and subsidiarity

A standard account would probably not bother on the distinction between powers and competences. It would simply state that the core issue behind the different terms is the question of the limits to European activities, in particular to legislative activities

This standard account would first point to the fact that the fundamental principle of the European competence order has always been the principle of enumerated competences (conferred powers), laid down in Art. 5 para. 1 EC,23 the former Art. 3b EEC-Treaty. According to this principle, the Community 24 may only act within the limits of the competences conferred upon it by primary law and of the objectives assigned to it therein. As for categories, academia has been trying to establish all kinds of categories, in part based on categories from domestic federal constitutional thought. These categories include exclusive, concurring, parallel, coordinating or complementary competences.

The problem about all these categories is not so much the definition of a category in general terms, but the attribution of the treaties’ competence-provisions to the respective categories. Neither academia nor the case-law of the ECJ have managed to establish a coherent and undisputed system. A case in point is the debate on whether the internal market competence (Art. 95 EC) should be considered as an exclusive competence (as clearly no Member State can establish a European-wide internal market on its own) or not (as the Member States also contribute to establishing the internal market).25 What can be said for sure about categories is that Art. 5 para. 2 EC establishes a distinction between exclusive European competences and non-exclusive competences. Only the latter are subject to the subsidiarity test.26

A standard account of the European competence system will emphasize that there are no lists or catalogues of competence provisions, as known from classical federal constitutions.27 Instead, the competence provisions may be found all over the treaties. Most of these provisions are positive competence provisions, i.e. provisions that lay down what the Union/Community may do. These provisions have been modified and amended over the years, they reflect countless political compromises. They therefore appear to be much more differentiated than the habitual lists or catalogues of competences in federal constitutions.28 This is contested for some of the positive competence provisions, though.29 One of the most criticized positive competence provisions is Art. 308 EC.30 This article allows the Community to take the appropriate measures if action by the community should prove necessary to attain (in the course of the operation of the common market) one of the objectives of the Community.31 Equally contested are the internal-market provisions of Art. 94, 95 EC 32 by virtue of which the Community can adopt measures whose object is the establishment and functioning of the internal market.

There are also numerous clauses in the treaties for which the term negative competence provisions may be coined, i.e. provisions stating that the Union/community may not take action. In a sense the provision on enumerated powers (Art. 5 EC 33) and the principle of comity (Art. 10 EC, as far as it also applies in favor of the Member States 34) can be read as negative competence provisions.35 In addition, there are numerous articles where positive competence provisions contain explicit exclusions of certain area fields.36 Art. 137 para. 6 EC 37 is a case in point: there, pay, the right of association, the right to strike or the right to impose lock-outs are excluded from the social policy competences of the EU. Another example is Art. 152 para. 5 EC,38 according to which the Community shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care and shall not affect national provisions on the donation or medical use of organs and blood. Typically, these provisions prevent the European level from harmonizing national legislation in certain fields.

Besides positive competence provisions, the treaties also contain provisions on how to use existing competences such as the principle of subsidiarity in Art. 5 para. 2 EC 39 (for non-exclusive competences of the Community) 40 or the principle of proportionality in Art. 5 para. 3 EC.41

Finally, there is the field of external competences for concluding international treaties. This type of competence has always been a particular category, often enough ignored in the debate. In a series of decisions of which the AETR case is probably the most famous, the ECJ has hammered out those principles implicit in the founding treaties that govern the law of external competences.42

3. Powers and competences pre-Convention: no major legal problem

The debate of the Nineties and the Convention’s main concern seem to indicate that there exists a major and urgent problem with regard to the delimitation of competences as set up by the European founding treaties. A close look at the treaties does not confirm this impression of a highly problematic situation. It is true that European competences are not enumerated in a list or catalogue, but scattered all over the treaties, therefore they are not easy to find and read. Still, I would insist that these competence provisions tightly circumscribe European public authority, probably even much better than the lists of competences used in federal constitutions (see supra). This view is confirmed by the 2002 background-study prepared by the Secretariat of the Convention for the Convention’s deliberations on the issue.43

From a pre-Convention legal perspective, an urgent need for rewriting the European system of competences from scratch is hard to detect. From this perspective, there are no obvious deficiencies. The limits to European powers are numerous; the overall volume of European competences is not unsettling. This, of course, raises the question, why the issue has assumed such importance over the last few years. I will come back to that question later.

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