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GENERAL PRINCIPLES. Principle of conferred powers Article 5 1.The limits of Union competences are governed by the principle of conferral. (…) 2.Under.

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Presentation on theme: "GENERAL PRINCIPLES. Principle of conferred powers Article 5 1.The limits of Union competences are governed by the principle of conferral. (…) 2.Under."— Presentation transcript:

1 GENERAL PRINCIPLES

2 Principle of conferred powers Article 5 1.The limits of Union competences are governed by the principle of conferral. (…) 2.Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3 Powers of the EU Explicit powers Implied powers Art. 352 TFEU

4 Implied powers the existence of a given power implies also the existence of any other power which is reasonably necessary for the exercise of the former; the existence of the given objective or function implies the existence of any power reasonably necessary to attain it.

5 Implied powers 27 (…) it must be considered whether the second paragraph of Article 118, which provides that the Commission is to act, inter alia, by arranging consultations, gives it the power to adopt a binding decision with a view to the arrangement of such consultations. 28 In that connection it must be emphasized that where an article of the EEC Treaty - in this case Article confers a specific task on the Commission it must be accepted, if that provision is not to be rendered wholly ineffective, that it confers on the commission necessarily and per se the powers which are indispensable in order to carry out that task. Accordingly, the second paragraph of Article 118 must be interpreted as conferring on the Commission all the powers which are necessary in order to arrange the consultations. In order to perform that task of arranging consultations the Commission must necessarily be able to require the Member States to notify essential information, in the first place in order to identify the problems and in the second place in order to pinpoint the possible guidelines for any future joint action on the part of the Member States; likewise it must be able to require them to take part in consultations.

6 Implied powers Case C-376/98 Germany v EP and Council (Tabaco Advertising case) 83. Those provisions, read together, make it clear that the measures referred to in Article 100a(1) of the Treaty are intended to improve the conditions for the establishment and functioning of the internal market. To construe that article as meaning that it vests in the Community legislature a general power to regulate the internal market would not only be contrary to the express wording of the provisions cited above but would also be incompatible with the principle embodied in Article 3b of the EC Treaty (now Article 5 EC) that the powers of the Community are limited to those specifically conferred on it.

7 Implied powers Case C-376/98 Germany v EP and Council (Tabaco Advertising case) 84. Moreover, a measure adopted on the basis of Article 100a of the Treaty must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. If a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to justify the choice of Article 100a as a legal basis, judicial review of compliance with the proper legal basis might be rendered nugatory. The Court would then be prevented from discharging the function entrusted to it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring that the law is observed in the interpretation and application of the Treaty. 85. So, in considering whether Article 100a was the proper legal basis, the Court must verify whether the measure whose validity is at issue in fact pursues the objectives stated by the Community legislature (…).

8 Article 352 (ex Article 308 TEC) 1.If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.

9 Article 352 Limitations: Measures based on Article 352 may not entail harmonisation of Member States' laws or regulations in cases where the Treaties exclude such harmonisation; Article 352 cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy; Article 352 cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaties without following the procedure which they provide for that purpose.

10 Article 352 Opinion 2/94 Article 235 [now 352] is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of the Community powers beyond the general framework created by Treaty as a whole and, in particular, by whose that define the tasks and the activities of the Community. On any view, Article 235 cannot be used as a basis for the adoption of provisions whose effects would, in substance, be amend the Treaty without following the procedure which it provides for that purpose.

11 CATEGORIES AND AREAS OF UNION COMPETENCE Exclusive competencies of the Union; Shared competencies; Competencies to support, coordinate or supplement the actions of the Member States; Exclusive competencies of the Member States.

12 Exclusive competencies Article 2 TFEU 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.

13 Exclusive competencies (a)customs union; (b)the establishing of the competition rules necessary for the functioning of the internal market; (c)monetary policy for the Member States whose currency is the euro; (d)the conservation of marine biological resources under the common fisheries policy; (e)common commercial policy.

14 Exclusive competencies Article 2 TFEU conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

15 Shared competencies the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States exercise their competence to the extent that the Union has not exercised its competence. The Member States again exercise their competence to the extent that the Union has decided to cease exercising its competence

16 Shared competencies (a)internal market; (b)social policy, for the aspects defined in the Treaty; (c)economic, social and territorial cohesion; (d)agriculture and fisheries, excluding the conservation of marine biological resources; (e)environment; (f)consumer protection; (g)transport (h)trans-European networks; (i)energy; (j)area of freedom, security and justice; (k)common safety concerns in public health matters, for the aspects defined in the Treaty.

17 Competencies to carry out supporting action Article 2 TFEU 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.

18 Competencies to carry out supporting action Article 6 The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (a)protection and improvement of human health; (b)industry; (c)culture; (d)tourism; (e)education, vocational training, youth and sport; (f)civil protection; (g)administrative cooperation.

19 Subsidiarity Article 5 1. (…)The use of Union competences is governed by the principles of subsidiarity and proportionality. (…) 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

20 Subsidiarity Question – who should act in particular case: the EU or Member States? (within the area of other than exclusive competencies): the affirmative statement that the EU must act where the objectives to be pursued can be better attained at the Union level, which enhances its powers; the negative statement that it must not act where objectives can be satisfactorily attained by the Member States acting individually, which constrains them.

21 Proportionality Article 5 4.Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

22 Proportionality next question - the intensity and the form that the action of the EU should take Proportionality test: whether the measure was suitable to achieve the desired end, whether it was necessary to achieve the desired end whether the measure imposed a burden on the individual that was excessive in relation to objective sought to be achieved (proportionality stricto sensu)

23 Proportionality Case C-331/88 Fedesa 13 The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. 14 However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (…)

24 Respect of identity of the Member States Article 2 EU Treaty 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

25 Respect of identity of the Member States Aspects: equality of Member States before the Treaties (see: sovereign equality of states); national identities – constitutional and political structure (e.g.. division powers between national authorities, political order, language of the State etc.) essential State functions (territorial integrity of the State, maintenance of law and order, national security).

26 Respect of identity of the Member States C-208/09 Ilonka Sayn-Wittgenstein 92. It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic. 93 In the present case, it does not appear disproportionate for a Member State to seek to attain the objective of protecting the principle of equal treatment by prohibiting any acquisition, possession or use, by its nationals, of titles of nobility or noble elements which may create the impression that the bearer of the name is holder of such a rank. By refusing to recognise the noble elements of a name such as that of the applicant in the main proceedings, the Austrian authorities responsible for civil status matters do not appear to have gone further than is necessary in order to ensure the attainment of the fundamental constitutional objective pursued by them. 94 In those circumstances, the refusal, by the authorities of a Member State, to recognise all the elements of the surname of a national of that State, as determined in another Member State – in which that national resides – at the time of his or her adoption as an adult by a national of that other Member State, where that surname includes a title of nobility which is not permitted in the first Member State under its constitutional law cannot be regarded as a measure unjustifiably undermining the freedom to move and reside enjoyed by citizens of the Union.

27 Respect of common values Article 2 The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

28 Respect of common values Principle of democracy Principle of protection of human rights Rule of law

29 Principle of democracy TITLE II PROVISIONS ON DEMOCRATIC PRINCIPLES citizenship of the Union - the principle of democratic equality, the principle of representative democracy, The principle of participatory democracy

30 Principle of democracy citizenship of the Union - the principle of democratic equality, In all its activities, the Union observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.

31 Principle of democracy the principle of representative democracy Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

32 Principle of democracy The principle of participatory democracy Article 11 1.The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2.The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3.The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent. 4.Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

33 Protection of human rights the absence of reference to individual human rights in the treaty establishing the EEC (1957) the ECJ starts with its case-law on human rights protection: fundamental human rights incorporated in the general principle of community law are protected by the Court (Stauder case, 1969)

34 Protection of human rights further steps in the case-law of the ECJ: the sources of law used by the ECJ for the protection of human rights ▫ constitutional traditions common to Member States (Internationale Handelsgeselschaft case, 1970) ▫ international treaties on human rights, in particular the European Convention on Human Rights and Fundamental Freedoms of 1950, (Nold case, 1974)

35 Protection of human rights the recognition of human rights in the Treaty on European Union (Maastricht, 1992) ▫ “The Union shall respect the fundamental rights, as guaranteed by the European Convention on Human Rights … and as they result from the constitutional tradition common to the Member States, as general principles of Community law” (Art. F) the absence of a catalogue of human rights within the EU legal order the European Council of Cologne (1999): ▫ “The European Council takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at the Union level should be consolidated in a Charter and thereby made more evident”

36 Protection of human rights THE ADOPTION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (NICE, 7 DECEMBER 2000) the structure of the Charter: ▫ the rights are grouped under six universal values (dignity, freedoms, equality, solidarity, citizen’s rights, justice) and ▫ four general provisions governing the interpretation and application of the Charter

37 Protection of human rights The Treaty of Lisbon Article 6 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2.The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. 3.Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

38 Protection of human rights Acts of the EU institutions ▫ interpretation ▫ legality review Acts of the Member States: – when they are implementing EU law - 5/88 Wachauf –when they derogate according to the provisions on fundamental freedoms - C-260/89 ERT

39 Principle of sincere cooperation/solidarity Article 4 3.Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.


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