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Constitutional and institutional law of the European Union.

Section A: The European Union institutional outline.

Chapter 5: Competences and subsidiarity.

Notes by Kaihsu Tai, 2010-04-22.

Competences
The constitutional status quo (including case law) on competences has been restated/codified (however imperfectly) in Articles 3 to 6 TFEU.

Implied powers
The Union has implied authority to conclude agreements with third-parties after it had exercised internal power in the policy area; this is exclusive competence for the Union insofar as that the Member State no longer has power to alter the scope of common rules; such agreement can be sui generis acts when expedient: ERTA case 22/70. This is now codified within Article 3(2) TFEU: ‘The Union shall also have exclusive competence for the 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.’

The Union has implied power indispensable in carrying out tasks conferred by the Treaties such as social and immigration policy: Germany v Commission 281/85.

Open-ended power under Article 352 TFEU (ex 308 TEC) can be relied upon for customs union if necessary powers not provided elsewhere: Hauptzollamt Bremerhaven v Massey-Ferguson 8/73. Open-ended power under Article 352 cannot serve as the basis for tasks not defined by the Treaties: Opinion 2/94 (ECHR).

While the European Community does not have express competence as legislator in criminal law, ‘When the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective.’: Commission v Council C-176/03 (as restated in Commission v Council C-440/05).

Legal basis
‘[T]he choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie the agreement that it seeks to conclude to a Treaty provision which empowers it to approve such a measure’: Opinion 1/08 (General Agreement on Trade in Services).

When a policy area can be based on two Articles with different procedures, both need to be fulfilled: Commodity Coding case 165/87. But when procedural provisions conflict, one has to be chosen as the sole legal basis: Titanium Dioxide C-300/89; distinguish from Commodity Coding.

Article 352 TFEU (ex 308 TEC) cannot be relied upon when a more specific legal basis provides for the specific power and rule of procedure: Tariff Preference case 45/86.

Decision 2004/496 (EU-USA Passenger Name Record Agreement) cannot have been validly adopted on the basis of Article 114 TFEC (approximation of laws; ex 95 TEC) and Article 25 of Directive 95/46 (protection of individuals with regard to the processing of personal data and on the free movement of such data): Parliament v Council C-317/04.

Provisions adopted based on TEU that could have been validly adopted on EC Treaty infringes ex Article 47 TEU: Commission v Council C-440/05 (ship-source pollution). Similarly, a measure cannot base itself on the Common Foreign and Security Policy if it could properly be adopted on the basis of the EC Treaty: Commission v Council C-91/05 (small arms).

Subsidiarity
The principle of subsidiarity was pleaded by Germany but not considered in the Tobacco Advertising case C-376/98; rather the Court ruled that Parliament and Council lacked competence to impose an overall ban on tobacco advertising, not within the indispensable power for completing the internal market. The harmonization of laws for human health was an express exclusion in the Treaty. (A later, narrower Directive 2003/33/EC replacing the annulled Directive 98/43/EC was held to be compatible with Article 114 TFEU: Germany v Parliament and Council C-380/03.)

The principle of subsidiarity cannot be relied upon to annul a measure if the Treaty provides for the competence expressly: Working Time Directive case C-84/94.

Delegation of powers
Obligations accompanying delegated power, such as the requirement for reasoning, applies to the delegate; delegation of powers cannot be implied by non-specific conferral of tasks; discretionary power cannot be delegated: Meroni case 9/56. This last applies even to Member States: Rey Soda case 23/75.

Reasoning
Acts must state the reasons on which they are based, enough to enable any person concerned to have defend their interests: Brennwein case 24/62. Reasons should not be merely a reference to another act or a judgment: Papiers Peints 73/74.