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Division of competences within the European Union
The Treaty of Lisbon clarifies the division of competences between the European Union (EU) and Member States. It introduces a precise classification for the first time in the founding Treaties, distinguishing between three main types of competence: exclusive competences, shared competences and supporting competences.
This attempt at clarification does not result in any notable transfer of competence. However, this reform is important and vital for the proper functioning of the EU. Several conflicts of competence have emerged in the past between the EU and Member States. Henceforth, the boundaries between the competences of each are clearly defined. In addition, this transparency facilitates the application of the fundamental principles relating to the control and exercise of these competences.
ABOLITION OF THE PILLARS OF THE EU
One of the most notable changes resulting from the Treaty of Lisbon concerns the abolition of the three-pillar structure of the EU. These pillars were:
- the European Community;
- the Common Foreign and Security Policy (CFSP);
- police and judicial cooperation in criminal matters.
Within this structure, several types of competence were superimposed. Acts adopted under the framework of the first pillar were adopted in accordance with the EU’s legislative procedures. In contrast, the other two pillars were based on intergovernmental cooperation between Member States.
The Treaty of Lisbon puts an end to this complicated structure. The European Community disappears. It is replaced by the EU, which is endowed with legislative procedures enabling it to exercise the competences conferred upon it to the full extent. Moreover, the EU also acquires legal personality, which was previously reserved for the old Community. It is therefore able henceforth to conclude treaties in the fields coming within its area of competence.
THE THREE MAIN TYPES OF COMPETENCE
The Treaty on the Functioning of the EU (TFEU) distinguishes between three types of competence and draws up a non-exhaustive list of the fields concerned in each case:
- exclusive competences (Article 3 of the TFEU): the EU alone is able to legislate and adopt binding acts in these fields. The Member States’ role is therefore limited to applying these acts, unless the Union authorises them to adopt certain acts themselves;
- shared competences (Article 4 of the TFEU): the EU and Member States are authorised to adopt binding acts in these fields. However, Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence;
- supporting competences (Article 6 of the TFEU): the EU can only intervene to support, coordinate or complement the action of Member States. Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for Member States.
The EU has special competences in certain fields:
- the coordination of economic and employment policies (Article 5 of the TFEU): the EU is responsible for ensuring the coordination of these policies. It is required to define the broad direction and guidelines to be followed by Member States;
- the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields connected with the CFSP. It defines and implements this policy via, among others, the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy, whose roles and status have been recognised by the Treaty of Lisbon. However, the EU may not adopt legislative acts in this field. In addition, the Court of Justice of the EU does not have competence to give judgment in this area;
- the “flexibility clause” (Article 352 of the TFEU): this clause enables the EU to act beyond the power of action conferred upon it by the Treaties if the objective pursued so requires. However, this clause is framed by a strict procedure and by certain restrictions in terms of its application.
THE EXERCISE OF COMPETENCES
The exercise of Union competences is subject to three fundamental principles which appear in Article 5 of the Treaty on EU. The definition of EU competences greatly facilitates the proper application of these principles:
- the principle of conferral: the Union has only the competences conferred upon it by the Treaties;
- the principle of proportionality: the exercise of EU competences may not exceed what is necessary to achieve the objectives of the Treaties;
- the principle of subsidiarity: for shared competences, the EU may intervene only if it is capable of acting more effectively than the Member States;
TRANSFER OF COMPETENCES
The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.