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; Nettesheim, ’Kompetenzen’, in A. v. Bogdandy (ed), Europäisches Verfassungs­recht (2003), at 415 et seq. (English version forthcoming 2004); Bieber, ‘Kompetenzen und Institutionen im Rahmen einer EU-Verfassung’, in Häberle/Morlok/ Skouris (eds), Festschrift für D. Th. Tsatsos (2003), at 31 et seq.; Craig, ‘Competence: clarity, conferrral, containment and consideration’, 29 ELRev (2004) 323. For a comparative view see F. C. Mayer, The Delimitation of Powers – Lessons from the United States for the European Union? in D. Halberstam and M. P. Maduro (eds), The Constitutional Chal­lenge in Europe and America: People, Power, and Politics (forthcoming 2004).

2 See in that context G. Yeffeth, Taking the Red Pill. Science, Philosophy and Religion in The Matrix (2003). The movie had two sequels, Matrix – Reloaded (2003) and Matrix – Revolutions (2003), which were generally considered less imaginative than the first movie.

3 L. Wachowski and A. Wachowski, The Matrix. The Shooting Script (2001) at 74.

4 This may be a difference as to comperence debates in federal states.

5 Since February 2003 and until further notice – as the ratification of the Constitutional Treaty procedure may take at least two years and may even fail - the founding treaties as amended by the Nice Treaty of 2001 are the relevant law.

6 Hereinafter CE. For the result of the Convention’s work, see the “Draft Treaty establishing a Constitution for Europe“ of July 18, 2003, Convention document CONV 850/03. The Intergovernmental Conference of 2003/2004 established a revised version of the Convention’s text which is IGC document CIG 50/03 (25 November 2003). The political agreement reached on the Constitution is laid down in CIG 81/04 (16 June 2004) and finally CIG 85/04 (18 June 2004), which both refer to CIG 50/03. A consolidated, preliminary text is available as CIG 86/04 (25 June), with two addenda that include the protocols and declarations to the Treaty, an overall package of more than 700 pages. This text was renumbered for the signature in Rome on 29 October 2004 (CIG 87/04). All articles quoted here refer to the final article numbers (CIG 87/04), if the article number of the original draft established by the Convention is different, the original number is also also indicated.

7 As published in the OJ, whereas the English version of the initial document agreed upon in Nice (SN 533/00) uses the word ‘competencies’.

8 In will use ‘competences’ (as opposed to competencies, see e.g. Working Group V on Complementary Competencies (4.11.2002) CONV 375/1/02 REV1) as the plural of competence, because ‘competences’ is the word used in the constitutional treaty.

9 See ‘Charlemagne. Snoring while a superstate emerges?’, The Economist 8.5.2003, stating “powers (‘competences’, in Euro-speak)”. On the terminology question see also de Búrca and De Witte, ‘The Delimitation of Powers Between the EU and ist Member States’ in A. Arnull and D. Wincott (eds), Accountability and Legitimacy in the European Union (2002), 201, at 202; Mayer, ‘The language of the European Constitution – beyond Babel?’ in A. Bodnar et al. (eds), The Emerging Constitu­tional Law of the European Union - German and Polish Perspectives (2003), at 359. In a non-legal English context ‘competence’ is mostly used as a singular word to express a particular kind of expertise, see in that context D. Halberstam, From Competence to Power: Bureaucracy, Democracy, and The Future of Europe, Jurist EU Paper 7/2003, . Note that this element of expertise is totally absent from the German constitutional law concept of Kompetenz.

10 See for further reference on the German concept R. Stettner, Grundfragen einer Kompetenzlehre (1983); see also F. C. Mayer, Kompetenzüberschreitung und Letztentscheidung (2000) at 21 et seq. I will not deal with the concept of ‚Kompetenz-Kompetenz’ here. This concept goes back to Böhlau, Kompetenz-Kompetenz? (1869). See also C. Schmitt, Verfassungslehre (1928), at 386 et seq.; M. Usteri, Theorie des Bundesstaats (1954), at 96 et seq.; Lerche, ‘"Kompetenz-Kompetenz" und das Maastricht-Urteil des Bundesverfas­sungsgerichts’, in J. Ipsen et al. (eds), Festschrift Heymanns Verlag (1995), at 409 et seq. See also T. Hartley, Constitutional Problems of the European Union (1999), at 152 et seq.; critical Grabitz, ‘Der Verfassungsstaat in der Gemeinschaft’, DVBl. (1977) 786, at 790. The main problem with the notion of Kompetenz-Kompetenz is its equation with sovereignty, see for example MacCormick, ‘Sovereignty Now’, 1 ELJ (1995) 259, at 260. The concept can be perpetuated ad infinitum: the competence to decide upon the Kompetenz-Kompetenz would be ‘Kompetenz-Kompetenz-Kompetenz’, M. Zürn, The State in the Post-National Constel­lation - Societal Denationalization and Multi-Level Governance, ARENA Working Papers WP 99/35 (1999), Note 45.

11 See for example P. Craig and G. de Burca (eds), The evolution of EU law (1998) 137 et seq., where the term is used.

12 See Art. I-11 to I-18 (previously Art. I-9 to I-17): “Title III: Union competences”.

13 Convention document CONV 850/03, “Our Constitution ... is called a democracy because power is in the hands not of a minority but of the greatest number.” This quote was not kept in the final version of the text as agreed upon at the Brussels summit in June 2004, see Intergovernmental Conference document CIG 86/04.

14 Previously Art. I-17.

15 Previously Art. I-11.

16 Previously Art. I-18.

17 Previously Art. I-29.

18 Previously Art. I-31.

19 Previously Art. I-36.

20 Previously Art. II-51.

21 v. Bogdandy/Bast/Westphal, supra n. 57, at 422, point to this perspective.

22 See Art. III-115 (previously Art. III-1) that refers to “the principle of conferring of powers“, as opposed to Art. I-11 (previously Art. I-9) (competences, principal of conferral). In the convention Draft (CONV 850/03), “powers” is used in Arts. III-6, 8, 9, 17, 65, 80, 83, 235, 270 (misuse of powers), 278, 290, 315, 341. The protocol on National Parliaments uses the term “legislative powers” (para. 5).

23 This principle is now laid down in Art. I-11 para. 1 (previously Art. I-9 para. 1 (CONV 850/03)).

24 I will use Community and Union interchangeably. The concept of Community is given up by the Constitution anyway, with the exception of European Atomic Energy Community, which remains distinct from the Union.

25 See Nettesheim, supra n. 1, at 446.

26 See infra.

27 Art. I Sect. 8 of the US constitution, Arts. 73 et seq. of the German constitution.

28 In that sense Pernice, supra n. 1, at 872, who emphasizes that the finality-driven structure of the competence provisions is more competence limiting than lists of area fields.

29 See Jarass, supra n. 1, at 180.

30 See Art. I-18 (previously Art. I-17). It is an almost classical technique to provide this kind of safety-net provision for unforeseen cases, which is often construed as implied powers and which can be found, for example, in the US constitution the ‚necessary and proper-clause‘ of Art. I Sect. 8. See L. Tribe, American Constitutional Law. Volume One, (3rd ed. 2000), at 798.

31 Art. 308 EC, the former Art. 235 EEC, was used as a legal basis for European agencies, for example, see Nettesheim, supra n. 1, at 466 for further references.

32 See Arts. III-172 and III-173 (previously Arts. III-64 et seq.). A functional equivalent may be seen in the interstate commerce clause of the US constitution, Art. I Sect. 8 para. 3.

33 Art. I-11 para. 1.

34 Art. I-5 para. 2.

35 If A is true, it follows that there is no competence of the European level: set A = breach of comity, or A = no enumerated competence in the treaties.

36 See Part III of the Draft Constitution, CONV 850/03.

37 Now Art. III-210 para. 6 (previously Art. III-104).

38 Now Art. III-278 para. 7 (previously Art. III-179).

39 See Art. I-11 para. 3.

40 Arguably, there are different ways to look at the subsidiarity principle. Another reading of Art. 5 para. 2 EC is that it tells when competence no longer exists, it would be an ‘if’-provision on competences, not a ‘how’-provision.

41 See Art. I-11 para. 4.

42 For a detailed account Nettesheim, supra n. 1, at 436.

43 CONV 17/02, see also CONV 47/02. This contrasts with some of the findings in the Lamassoure-Report to the EP of January 2002, PE 304.276

44 See SN 300/01,
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