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Subsidiary powers

Article 352 of the Treaty on the Functioning of the European Union (TFEU) provides a flexibility clause with regard to the European Union's areas of competence. This clause allows the Union’s competences to be adjusted to the objectives laid down by the Treaty when the latter has not provided the powers of action necessary to attain them.

Article 352 of the TFEU cannot be used as a legal basis unless the following conditions are met:

  • the action envisaged is "necessary to attain, in the context of the policies defined by the Treaties (with the exception of the Common Foreign and Security Policy), one of the Union’s objectives”;
  • no provision in the Treaty provides for action to attain the “objective”;
  • the envisaged action must not lead to the Union’s competences being extended beyond those provided for by the Treaties.

The decision on whether this Article should be used is for the Council of the European Union, acting unanimously on a proposal from the Commission and after approval by the European Parliament.

The European Commission, in accordance with the procedure for monitoring subsidiarity provided by Article 5 of the Treaty on European Union (TEU), must inform national parliaments of the initiatives taken on the basis of Article 352 of the TFEU. 

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