Legislating and decision making in the EU

Article 5, TEU establishes the three treaty-based principles

Principle of Conferral - Sets the objectives of the European Union, these objectives give the union competences to legislate. Aka the areas in which the EU can legislate

Principle of Subsidiarity - In areas that do not apply to the exclusive competences, the union shall legislate only if the objective of the legislation cannot be achieved by the member states. National parliaments ensure compliance with this principle

Principle of Proportionality - The content and form of union acts shall not exceed what is necessary to achieve the objectives of the treaties.

Article 1 of the TEU states " The high contracting parties establish amongst themselves a European Union, hereinafter called "The Union" on which the member states confer competences to attain objectives they have in common." 

Article 4(1), TEU – Competences that are not conferred on the European Union, that power remains with the states

Article, 5, TEU – The limits of the union are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

COSTA v ENEL (1965)

"By creating a community of unlimited duration, having its own institutions, its own personality and its own legal capacity… and legal powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the member states have limited their sovereign rights albeit within limited fields and have created a body of law that binds both their nationals and themselves."

Under the principle of subsidiary, in areas that do not fall under the EU's exclusive competences, the union shall only act to achieve what the member states wanted to achieve but could not by themselves.

Institutions of the Union shall apply the principle of subsidiarity 

What is the objective of the principle of subsidiarity?

-Evaluate whether or not the union should exercise its competence in a particular area

- Tool for reviewing EU measures 

- Allows national parliaments to have a say in EU decision/legislation making

How to determine whether the principle of subsidiarity is being used appropriately and when to use it

1 Necessity: The objectives of the proposed decision cannot be sufficiently achieved by the member states 

- The commission must access the capacity of the member states to achieve the specific objective 

2. Added value, the objective can be better achieved as a union rather than as member states 

Protol col No2 on the application of the principles of subsidiarity and proportionality states that the national parliaments have the early warning system in which national parliaments receive draft legislative acts and a detailed statement on compliance with the principles of subsidiarity and proportionality (Article 5) 

-National parliaments can issue reasoned opinions on why the draft does not link well with the principle of subsidiarity

-Commission is not however obliged to take their reasoned opinions. 

British American Tobacco (2002) 

Facts

• Directive 2001/37/EC aimed to harmonize laws on the manufacture, sale, and production of tobacco products 
• The directive was added on the basis of Article 114 on internal market measures and common commercial policies 
• The issue was whether the directive was valid

Ruling 

• When the community makes use of article 114, the principle of subsidiarity is applied. 
• The community has a certain competence granted to it by the member states that allows it to improve conditions for the establishment and functioning of the internal market 
• This can be done by eliminating the barriers against the free movement of goods throughout the member states due to the differences in sale, production and manufacture of tobacco products 

Article 5(4) TEU 

The content and form of Union action shall not exceed what is necessary to achieve the objectives of the treaties 

Proportionality test 

C-331, ex parte Fedesa (1990) 

'The lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory are appropriate and necessary in order to achieve objectives' 

-Is there a legitimate aim being pursued?

-Is the measure suitable/appropriate to achieve the legitimate aim pursued 

-Is the measure necessary to achieve the legitimate aim?

-Are there less intrusive alternatives and are the means proportionate to the ends?

Shared - EU has legal obligation to legislate

Exclusive - EU can legislate if the principle of subsidiarity is fulfilled 

Complementary - Areas where the EU can introduce measures to facilitate cooperation between states

Harmonisation - Article 114 TFEU, EU can legislate to eliminate differences among MS national laws that can affect the internal market by introducing barriers to the free movement of workers, goods, capital or services.

Residual - Article 353 TFEU, It can be used to pursue existing policy objectives or to develop policies that were not explicitly included in the treaties