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The Union's founding principles
The draft constitution classifies the respective competences of the European Union
(EU) and of the Member States, and devotes a specific title to the principles governing
the distribution of these competences.
The lack of clarity and precision in the current demarcation of competences has three major drawbacks which prompted the Convention to react:
- European citizens complain they do not understand "who does what" within the EU;
- the EU gives the impression of wanting to legislate either in areas where it is not competent (thus encroaching on the competences of the Member States) or in areas where it is not appropriate to do so, and to legislate in too detailed a way;
- there are too few checks to ensure that limits on competence and, in particular, the principle of subsidiarity are observed.
The classification in Article I-11 of the Constitution identifies three categories
of competence: exclusive competence, shared competence and supporting competence.
The draft also points out that the Union has powers to coordinate economic and employment
policies as well as powers to define and implement a common foreign and security
Moreover, the draft treaty retains a flexibility clause whereby the Council can authorise the Commission to act, where necessary, beyond the powers granted to it. The draft also provides for stronger checks on compliance with the demarcation of powers.
Finally, it should be noted that the amendments are basically minor ones since changes in competences (in the form of a transfer of powers) are almost non-existent.
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Article I-9 of the draft treaty restates the basic 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 Convention is to specify in the Constitution 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 has prefigured such an approach in that it defines three types of competences (exclusive, shared and complementary) which are almost identical to the classification adopted by members of the Convention. 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 draft 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-11, setting out categories of competence, adds that "the scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III [of the draft constitution]". This creates a situation that is almost identical to the one we have now.
A number of general principles are grouped together under this title on competences. Some are found in an article on Union law, which might also have been placed in Title I, where the Union and its objectives are defined. This is Article I-10, which affirms the primacy and direct effect of Community law for the first time in any of the treaties. This is an important innovation in that neither of these two principles, deriving from the Court of Justice's famous judgments in Costa in 1964 (primacy) and Van Gend en Loos (direct effect) in 1963, had previously been affirmed in any of the treaties.
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Articles I-11 to I-16 describe in detail the various types of competence:
- Exclusive competence (Article I-12)
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 this area only if empowered to do so by the Union. Article I-12 specifies the areas in which the Union has exclusive competence. These areas are the same as before.
- Shared competence (Article I-13)
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. Most of the Union's competences fall into this category. Article I-13 contains a non-exhaustive list of shared competences that correspond more or less to existing ones except that they also include the area of freedom, security and justice. This article also lists certain competences which were previously regarded as complementary (now called "supporting competence"). The areas in question are research and technological development, development cooperation and humanitarian aid.
- Supporting, coordinating or complementary competences (Article I-16)
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. 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 remain virtually unchanged. Two areas of activity that were previously covered by a number of dispersed provisions are highlighted in specific articles. They concern the coordination of economic and employment policies (Article I-14) and the common foreign and security policy (Article I-15). In the areas of employment, economic policy and, where appropriate, social policy, the Union will have competence to promote and ensure the coordination of national policies. As regards the common foreign and security policy, it is stated that the Union will define and implement a common foreign and security policy that the Member States will actively and unreservedly support.
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-43 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 substantially equivalent to the provisions currently found in the EU treaty. The only significant change concerns 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-9 states that the exercise of the Union's competences is governed by
the principles of subsidiarity and proportionality.
The members of the Convention propose that the monitoring of compliance with the demarcation of competences, and in particular the principle of subsidiarity, should be strengthened and fully involve national parliaments. The protocol on the application of the principles of subsidiarity and proportionality specifies the steps to be taken to set up an early warning system . In this connection, Article I-17 requires the Commission to inform the Member States' national parliaments of any proposals based on the use of the flexibility clause so that they can monitor compliance with the subsidiarity principle.
To retain some flexibility in the system for distributing competences, there is a clause enabling the Council, acting unanimously, to make good any gap in the powers granted to the Union if action by the Union is necessary to attain one of the objectives set by the Constitution. This provision, in Article I-17, echoes, Article 308 of the Treaty establishing the European Community although it applies not only 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.
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|Articles I-9 to I-17||Union competences||-|
|Article I-9||The principles of conferral of competences, subsidiarity and proportionality|
|Article I-10||Primacy and direct effect of Community law||New provisions
|Article I-11||Categories of competence|
|Article I-12||Exclusive competence||Significant changes
|Article I-13||Shared competence|
|Article I-16||Supporting, coordinating or complementary competences|
|Article I-17||Flexibility clause||-|
|Article I-43||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 Convention.