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The Union's founding principles


Classification and exercise of competences


Introduction
General principles
Various types of competence
Exercise of competences: monitoring and flexibility
Summary table

INTRODUCTION

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:

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 (CFSP).
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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GENERAL PRINCIPLES

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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THE VARIOUS TYPES OF COMPETENCE

Articles I-12 to I-17 describe in detail the various types of competence:

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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EXERCISE OF COMPETENCES: MONITORING AND FLEXIBILITY

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 proportionality.
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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SUMMARY TABLE

Articles Subject Comments
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

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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.


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