Division of competences within the European Union
The EU has only the competences conferred on it by the Treaties (principle of conferral). Under this principle, the EU may only act within the limits of the competences conferred upon it by the EU countries in the Treaties to attain the objectives provided therein. Competences not conferred upon the EU in the Treaties remain with the EU countries. The Treaty of Lisbon clarifies the division of competences between the EU and EU countries. These competences are divided into 3 main categories:
shared competences; and
3 main types of competences
1.Exclusive competences (Article 3 of the Treaty on the Functioning of the European Union — TFEU) areas in which the EU alone is able to legislate and adopt binding acts. EU countries are able to do so themselves only if empowered by the EU to implement these acts. The EU have exclusive competence in the following areas:
the establishing of competition rules necessary for the functioning of the internal market;
monetary policy for euro area countries;
conservation of marine biological resources under the common fisheries policy;
common commercial policy;
conclusion of international agreements under certain conditions.
2.Shared competences (Article 4 of the TFEU): the EU and EU countries are able to legislate and adopt legally binding acts. EU countries exercise their own competence where the EU does not exercise, or has decided not to exercise, its own competence. Shared competence between the EU and EU countries applies in the following areas:
social policy, but only for aspects specifically defined in the Treaty;
economic, social and territorial cohesion (regional policy);
agriculture and fisheries (except conservation of marine biological resources);
area of freedom, security and justice;
shared safety concerns in public health matters, limited to the aspects defined in the TFEU;
research, technological development, space;
development cooperation and humanitarian aid.
3.Supporting competences (Article 6 of the TFEU): the EU can only intervene to support, coordinate or complement the action of EU countries. Legally binding EU acts must not require the harmonisation of EU countries’ laws or regulations. Supporting competences relate to the following policy areas:
protection and improvement of human health;
education, vocational training, youth and sport;
The EU can take measures to ensure that EU countries coordinate their economic, social and employment policies at EU level.The EU’s common foreign and security policy is characterised by specific institutional features, such as the limited participation of the European Commission and the European Parliament in the decision-making procedure and the exclusion of any legislation activity. That policy is defined and implemented by the European Council (consisting of the Heads of States or Governments of the EU countries) and by the Council (consisting of a representative of each EU country at ministerial level). The President of the European Council and the High Representative of the Union for Foreign and Security Policy represent the EU in matters of common foreign and security policy.
Exercise of competence
The exercise of EU competences is subject to two fundamental principles laid down in Article 5 of the Treaty on European Union:
proportionality: the content and scope of EU action may not go beyond what is necessary to achieve the objectives of the Treaties;
subsidiarity: in the area of its non-exclusive competences, the EU may act only if — and in so far as — the objective of a proposed action cannot be sufficiently achieved by the EU countries, but could be better achieved at EU level.
The principle of subsidiarity
The principle of subsidiarity is fundamental to the functioning of the European Union (EU), and more specifically to European decision-making. In particular, the principle determines when the EU is competent to legislate, and contributes to decisions being taken as closely as possible to the citizen.
The principle of subsidiarity is established in Article 5 of the Treaty on European Union. It appears alongside 2 other principles that are also considered to be essential to European decision-making: the principles of conferral and of proportionality.
The Protocol on the application of the principles of subsidiarity and proportionality also defines the implementation of the principle of subsidiarity. In addition, the Treaty of Lisbon has considerably strengthened the principle of subsidiarity by introducing several control mechanisms in order to monitor its application.
The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the EU countries. This may concern action at European, national or local levels. In all cases, the EU may only intervene if it is able to act more effectively than EU countries at their respective national or local levels. The Protocol on the application of the principles of subsidiarity and proportionality lays down 3 criteria aimed at establishing the desirability of intervention at EU level:
Does the action have transnational aspects that cannot be resolved by EU countries?
Would national action or an absence of action be contrary to the requirements of the Treaty?
Does action at EU level have clear advantages?
The principle of subsidiarity also aims at bringing the EU and its citizens closer by guaranteeing that action is taken at local level where it proves to be necessary. However, the principle of subsidiarity does not mean that action must always be taken at the level that is closest to the citizen.
Complementarity with the principles of conferral and of proportionality
Article 5 of the Treaty on European Union defines the division of competences between the EU level and that of EU countries. It first refers to the principle of conferral according to which the EU has only those competences that are conferred upon it by the Treaties.
Subsidiarity and proportionality are corollary principles of the principle of conferral. They determine to what extent the EU can exercise the competences conferred upon it by the Treaties. By virtue of the principle of proportionality, the means implemented by the EU in order to meet the objectives set by the Treaties cannot go beyond what is necessary.
The EU can therefore only act in a policy area if:
the action forms part of the competences conferred upon the EU by the Treaties (principle of conferral);
in the context of competences shared with EU countries, the EU level is most relevant in order to meet the objectives set by the Treaties (principle of subsidiarity);
the content and form of the action does not exceed what is necessary to achieve the objectives set by the Treaties (principle of proportionality).
MONITORING THE PRINCIPLE OF SUBSIDIARITY
Mechanisms to monitor the principle of subsidiarity were put in place by the Protocol on the application of the principles of subsidiarity and proportionality. The Treaty of Lisbon reformed the above Protocol in order to improve and reinforce monitoring.
The Protocol, introduced by the Treaty of Amsterdam, provided for compliance with certain obligations during the actual drafting of legislation. Thus, before proposing legislative acts, the European Commission must prepare a Green Paper. Green Papers consist of wide-ranging consultations. These enable the Commission to collect opinions from national and local institutions and from civil society on the desirability of a legislative proposal, in particular in respect of the principle of subsidiarity.
The Protocol also adds an obligation for the Commission to accompany draft legislative acts with a statement demonstrating compliance with the principles of subsidiarity and proportionality.
The Treaty of Lisbon innovates by associating national Parliaments closely with the monitoring of the principle of subsidiarity. National Parliaments exercise twofold monitoring:
they have a right to object when legislation is drafted. They can thus dismiss a legislative proposal before the Commission if they consider that the principle of subsidiarity has not been observed (see file National Parliaments);
they may contest a legislative act before the Court of Justice of the EU if they consider that the principle of subsidiarity has not been observed.
The Treaty of Lisbon also associates the Committee of the Regions with the monitoring of the principle of subsidiarity. In the same way as national Parliaments, the Committee may also contest, before the Court of Justice of the EU, a legislative act that does not comply with the principle of subsidiarity.
As part of its implementation of the Better Regulation initiative, the European Commission publishes annual reports on subsidiarity and proportionality.