The Union's founding principles
The Constitution clarifies the distribution of competences between the European
Union (EU) and the Member State. It devotes a specific title to the principles governing
this distribution of competences and to the different categories of competence.
The lack of clarity and precision in the current demarcation of competences has three major drawbacks which prompted this change:
- European citizens complain they do not understand "who does what" within the EU;
- the EU gives the impression of wanting to legislate (encroaching on the competences of the Member States), either in areas where it is not appropriate for it to do so, or in too detailed a way;
- there are not always adequate checks to ensure that demarcations of competence and, in particular, the principle of subsidiarity are observed.
The general classification adopted in Article I-12 of the Constitution identifies three categories of competence: exclusive competence, shared competence and supporting, coordinating or complementary competence.
The Constitution also stipulates that the Union has powers to coordinate economic
and employment policies as well as powers to define and implement a common
foreign and security policy
Moreover, the Constitution retains a flexibility clause whereby the Union can act, where necessary, beyond the powers conferred on it. It also introduces stronger checks on compliance with the demarcation of powers.
Finally, it should be noted that the amendments are basically minor ones and that changes in competences (in the form of a transfer of powers) are almost non-existent.
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Article I-11 of the constitutional Treaty restates the principle of conferral of competences whereby the Union can only act within the limits of the competences conferred on it to attain the objectives set out in the Constitution. The same Article expressly states that "competences not conferred upon the Union in the Constitution remain with the Member States".
The main innovation introduced by the Constitution is to specify the various types of competence that exist, which was never done in any of the previous Treaties. It should be pointed out, however, that the case law of the Court of Justice had prefigured such a categorisation, in that it defines three types of competences (exclusive, shared and complementary).
In addition, preference has been given to the method of conferring powers based on defining specific actions to be taken by the Union, i.e. the constitutional Treaty lists areas of competence. This clarifies matters in so far as the existing Treaties define the legislative powers of the Union both in terms of objectives to be achieved and by subject, which makes it more difficult to understand the whole. However, at the same time, it should be noted that Article I-12 stipulates that "the scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III". While it is true that this provision allows some flexibility to be maintained, at the same time it diminishes the usefulness of the classification, since it will always be necessary to analyse the provisions of Part III in order to know precisely "who does what".
Among the general principles concerning competences, mention should also be made of Article I-6 on the subject of Union law, which enshrines in the Treaties for the first time the principle of the primacy of Union law over the law of the Member States in the exercising of the competences conferred on the Union. This is an important innovation in that this principle, deriving from the Court of Justice's famous judgment in Costa v ENEL in 1964, had not previously been affirmed in Union primary law.
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Articles I-12 to I-17 describe in detail the various types of competence:
- Exclusive competence (Article I-13)
The Union has exclusive competence in a specific area when it alone is able to legislate and adopt legally binding acts. The Member States may intervene in the areas concerned only if empowered to do so by the Union or in order to implement Union acts. Article I-13 specifies the areas in which the Union has exclusive competence. These areas are the same as before.
- Shared competence (Article I-14)
In this particular case, the Member States and the Union have powers to legislate and adopt legally binding acts in a specific area. The Member States exercise their powers in so far as the Union has not exercised, or has decided to stop exercising, its competence. This is an affirmation of the case law on preemption. Most of the Union's competences fall into this category. Article I-14 contains a non-exhaustive list of shared competences that correspond more or less to existing ones except that they also include some advances in certain areas such as freedom, security and justice. This Article also lists certain competences which were previously regarded as parallel. The areas in question are research, technological development, space, development cooperation and humanitarian aid. However, in these areas the principle of preemption does not apply, in that Member States may continue to exercise their competences in parallel with the Union, even if the Union has exercised its own competences in these areas.
- Supporting, coordinating or complementary competences (Article I-17)
In certain areas and in the conditions laid down by the Constitution, the Union will have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. The Union's support will essentially be financial in nature. Legally binding acts adopted by the Union in this connection may not entail harmonisation of Member States' laws or regulations. The areas in which this type of competence applies are listed exhaustively in Article I-17. It should be emphasised that the explicit referral to the Union's competence in the areas of sport, administrative cooperation, tourism and civil protection is an innovation.
Apart from this new classification, a limited number of Member States will always be able to exercise competences using the enhanced cooperation mechanism. For example, Article I-44 states that Member States that wish to do so may establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences. The Constitution's provisions on enhanced cooperation are fairly similar to those currently found in the EU treaty. The most notable changes are: the disappearance of the restrictions with regard to CFSP and the ad hoc rules for police and judicial cooperation in criminal matters; the possibility, within the context of enhanced cooperation, of switching from unanimity to qualified majority voting or from a special legislative procedure to an ordinary legislative procedure; and the minimum threshold for participating Member States, which has been changed from the current eight to one third of the Member States.
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Article I-11 states that the exercise of the Union's competences is governed not
only by the principle of conferral but also by the principles of subsidiarity and
The constitutional Treaty strengthens the monitoring of compliance with the demarcation of competences, and in particular the principle of subsidiarity , thanks to introducing the involvement of the national parliaments. The protocol on the application of the principles of subsidiarity and proportionality sets up an early warning system which closely involves the national parliaments.
To retain some flexibility in the system for distributing competences, there is a clause enabling the Union to act beyond the powers of action conferred on it if action by the Union is necessary to attain one of the objectives set by the Constitution. This provision, in Article I-18, echoes Article 308 of the Treaty establishing the European Community and remains subject to unanimity. Its scope no longer applies merely to the operation of the common market but has been extended to cover the policies referred to in Part III of the Constitution. As regards the procedure, the Parliament must now approve each measure rather than just being consulted as in the past.
Article I-18 stipulates that the Commission must inform national parliaments of proposals that are based on the use of this flexibility clause, so that they can monitor compliance with the subsidiarity principle.
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|Articles I-11 to I-18||Union competences||-|
|Article I-6||Primacy of Community law||New provisions|
|Article I-11||The principle of conferral of competences, subsidiarity and proportionality||-
|Article I-12||Categories of competence||New provision
|Article I-13||Exclusive competence|
|Article I-14||Shared competence|
|Article I-17||Supporting, coordinating or complementary competences|
|Article I-18||Flexibility clause||-|
|Article I-44||Enhanced cooperation|
The fact sheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Constitution.