EU Decision Making & Judicial Remedies

Lecture 1: Competences and procedures

26 April 2017
Dr Maria Eva Foldes
S2 Context of this course: EU law in the LAW Program

 Y1/Q4: Introduction to EU Law

 Y1/Q4: EU Decision Making & Judicial Remedies

 Y2/Q5: EU Public Law

 Y2/Q5: European Criminal Law

 Y2/Q6: Internal Market Law

 Y2/Q8: EU Competition Law

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S3 Course program & schedule of lectures

Week 1 (EF): Competences and procedures

Week 2 (PH): Enforcing EU law (I): Legal effects of the EU legal order
Week 3 (PH): Enforcing EU law (II): Preliminary rulings
Week 4 (PH): Enforcing EU law (III): Actions in infringement
Week 5 (EF): Actions for annulment (I)
Week 6 (EF): Actions for annulment (II)
Week 7 (EF/PH): Recap lecture & course review
Week 8 (EF/PH): Final workshop including a mock exam; Q&A

Week 9: Exam Week

Week 12: Resit Exams (Q4) Week

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S4 Lecture 1: Competences & procedures - outline

 The EU & its Member States: division of competences

 What happens if EU institutions overstep their competences?

 Governance in the EU - the Community Method

 A closer look at different legislative procedures

 Alternative methods of governance: the Open Method of Coordination

(OMC)

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S5 The EU & its Member States: division of competences

EU institutions may only act where the TEU & the TFEU have given
them the power to act, i.e., where the EU has competence

“Action” includes both:

• Regulatory action - enacting binding & non-binding law
• Non-regulatory action – including redistributive action
(disbursement of the budget), coordination, guidance, etc.

Action taken by the EU without an appropriate legal basis

is unlawful & can be annulled by the CJEU

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S6 EU competences – the principle of conferral

Article 5(2) TEU on the principle of conferral

“Under the principle of conferral, the Union shall act only within the limits of
the competences conferred upon it by the Member States in the Treaties to
attain the objectives set out therein.

Competences not conferred upon the Union in the Treaties remain with the
Member States.”

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S7 What if the Union oversteps its competences?

An action for annulment can be brought before the CJEU on the basis of
Articles 263 & 264 TFEU

Example: Case C-376/98 Germany v European Parliament and Council

[2000] ECR I-8419 (Tobacco Advertising) - discussed during Lecture 5 on
actions for annulment

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S8 The EU & its Member States: division of competences

• If the EU has competence, then the Member States cannot act contrary to
it – as held by the CJEU in Case 22/70 Commission v Council, paragraphs
30-31.

• The competences of the Union are envisaged to be evolving, dynamic,

capable of expansion and reaction

• The issue of competence creep, i.e., gradual loss or transfer of

competences from the Member States to the EU – discussed during Intro
to EU law

• Tools helping to prevent the EU from going beyond its competences:

subsidiarity and proportionality – discussed during Intro to EU law

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S9 Competence division between the EU & its Member States
Exclusive Union Shared competences Supporting, coordinating,
competences (between the EU & States) supplementing
competences of the EU
Listed in Article 3 TFEU Listed in Article 4(2) TFEU Listed in Article 6 TFEU
The EU has all powers to States exercise their The EU only supports,
legislate. States may only act competences to the extent coordinates or supplements
where empowered by the EU that the EU has not done so the actions of the States
or for implementing EU acts or has ceased doing so

• customs union • internal market • protection & improvement

• competition rules for the • social policy of human health
internal market • economic, social & • industry
• monetary policy for the territorial cohesion • culture
Euro zone • agriculture & fisheries • tourism
• common commercial • environment • education, vocational
policy • consumer protection training, youth, sport
• conservation of marine • transport • civil protection
biological resources under • trans-European networks • administrative cooperation
the common fisheries policy • energy
• conclusion of international • freedom, security, justice
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agreements as set forth in • common safety concerns
Article 3(2) TFEU in public health matters
S10 Competence division between the EU & its Member
States - Article 2 TFEU

Art. 2 TFEU on exclusive Union competences:

2(1). “When the Treaties confer on the Union exclusive

competence in a specific area, only the Union may legislate and
adopt legally binding acts, the Member States being able to do so
themselves only if so empowered by the Union or for the
implementation of Union acts.”

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S11 Competence division between the EU & its Member
States - Article 2 TFEU

Art. 2 TFEU on shared competences:

2(2). “When the Treaties confer on the Union a competence

shared with the Member States in a specific area, the Union and
the Member States may legislate and adopt legally binding acts in
that area.

The Member States shall exercise their competence to the extent

that the Union has not exercised its competence. The Member
States shall again exercise their competence to the extent that the
Union has decided to cease exercising its competence.”

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S12 Competence division between the EU & its Member
States - Article 2 TFEU

Art. 2 TFEU on supporting, coordinating, supplementing

competences:

2(5). “In certain areas and under the conditions laid down in the
Treaties, the Union shall 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.”

NO harmonization of Member States’ laws or regulations

in these areas!

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S13 Competence division between the EU & its Member
States
Article 4(3) TFEU – Research, technological development & space

“In the areas of research, technological development and space, the Union
shall have competence to carry out activities, in particular to define and
implement programmes; however, the exercise of that competence shall
not result in Member States being prevented from exercising theirs.”

Article 4(4) TFEU - Development cooperation & humanitarian aid

“In the areas of development cooperation and humanitarian aid, the Union
shall have competence to carry out activities and conduct a common
policy; however, the exercise of that competence shall not result in
Member States being prevented from exercising theirs.”

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S14 Competence division between the EU & its Member
States

Article 2(4) TFEU – Common foreign & security policy

“The Union shall have competence, in accordance with the provisions of

the Treaty on European Union, to define and implement a common foreign
and security policy, including the progressive framing of a common
defence policy.”

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S15 Shared competences - challenges

• Sometimes it is unclear whether it is the Union or the Member

States which should act in a particular area

• The degree of sharing can differ according to the subject matter

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S16 Shared competences - challenges

Example:
Internal market: as soon as the Union acts, it assumes exclusive
power to act and Member States cannot act contrary to it.

If the Union chooses not to act, then Member States retain the power
to act –> free movement of goods and the freedom to provide services
were extended to areas formally reserved for exclusive competence of
the Member States – e.g., health care, pensions, etc.

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S17 Governance in the EU

How to run the EU?

The Community Method

The Open Method of Coordination

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S18 Governance in the EU – the Community Method

The Community Method is the usual decision-making method in the EU,

characterized by:

1. The European Commission’s role in legislative initiative

2. The Council’s role in decision-making

3. Involvement of the European Parliament in decision-making at different

degrees depending on the decision-making procedure:
• Ordinary legislative procedure
• Consent procedure
• Consultation procedure (as a special legislative procedure)

4. The role of the CJEU in providing judicial remedies

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S19 The ordinary legislative procedure

Article 289 TFEU:

“The ordinary legislative procedure shall consist in the joint adoption by

the European Parliament and the Council of a regulation, directive or
decision on a proposal from the Commission.”

This procedure is defined in Article 294 TFEU.

Examples will be discussed during the workshop.

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S20 The consent procedure

The Council must obtain the consent of the European Parliament

before adopting a proposed secondary EU legislation

The European Parliament has the right to veto the proposed legislation

Some examples:

• Membership applications to the EU – Article 49 TEU

• Adoption of the multiannual financial framework – Article 312 TFEU

• Approval of anti-discrimination action – Article 19(1) TFEU

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S21 Consent procedure – example 1

Article 312(2) TFEU

“The Council, acting in accordance with a special legislative procedure,

shall adopt a regulation laying down the multiannual financial
framework. The Council shall act unanimously after obtaining the
consent of the European Parliament, which shall be given by a majority
of its component members.”

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S22 Consent procedure – example 2

Article 19(1) TFEU

“Without prejudice to the other provisions of the Treaties and within the
limits of the powers conferred by them upon the Union, the Council, acting
unanimously in accordance with a special legislative procedure and
after obtaining the consent of the European Parliament,

may take appropriate action to combat discrimination based on sex,

racial or ethnic origin, religion or belief, disability, age or sexual
orientation.”

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S23 The consultation procedure

The Council must obtain the opinion of the European Parliament

before adopting a proposed secondary EU legislation

However, once the EP provided its opinion, the Council can choose to
ignore it; so, the EP’s opinion is NOT binding on the Council, and the EP
has NO veto right under this procedure

Nevertheless, the Council must always obtain the opinion of the EP where
the Treaties so require!

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S24 The consultation procedure

What happens if the EP is not consulted and the Council adopts a

legislation without asking for the opinion of the EP, contrary to the
applicable Treaty provisions?

Case 138/79 Roquette Freres v Council, judgment of 29 October 1980

“In the absence of the opinion of the Parliament required by Article 43

of the Treaty,

Regulation No 1293/79 amending Council Regulation No 1111/77 must be

declared void […]”. (paragraph 37).

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S25 The consultation procedure

Case 65/93 European Parliament v Council:

If the Commission proposal has been substantially altered, the European

Parliament must be consulted again!

Failure to do so will result in the annulment of the measure by the CJEU.

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S26 Consultation procedure – example 1

Article 109 TFEU on state aids

“The Council, on a proposal from the Commission and after consulting

the European Parliament,

may make any appropriate regulations for the application of Articles 107
and 108 and may in particular determine the conditions in which Article
108(3) shall apply and the categories of aid exempted from this
procedure.”

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S27 Consultation procedure – example 2

Article 113 TFEU on taxation

“The Council shall, acting unanimously in accordance with a special

legislative procedure and after consulting the European Parliament
and the Economic and Social Committee,

adopt provisions for the harmonization of legislation concerning turnover

taxes, excise duties and other forms of indirect taxation to the extent
that such harmonization is necessary to ensure the establishment and the
functioning of the internal market and to avoid distortion of competition.”

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S28 “Passerelle” provisions

Article 48(7) TEU allows, without treaty amendment, to change the

legislative procedure from a special to an ordinary one – in certain cases

Some examples:

Article 153 TFEU – concerning certain aspects related to the protection of

workers

Article 81(3) TFEU – concerning certain aspects of family law with cross-
border implications

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S29 The Community method – criticism

• Non-transparent decision-making in the EU institutions

• Limited democratic input & limited possibilities for citizens to participate in

the decision-making process

• Tensions between the intergovernmental & supranational elements

leading to “decision traps”

Search for alternative methods of governance for the EU

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S30 Alternative methods of governance for the EU:
The Open Method of Coordination (OMC)

What is the Open Method of Coordination (OMC)?

Formally introduced in 2000 as an EU method of soft governance used in

areas of:
• Shared competence between the EU & the Member States
• Coordinating, complementing, supplementing EU competence

Does NOT result in binding EU legislation

Aims to spread best practice & achieve convergence towards EU goals

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S31 The OMC – in what fields is it used?

Some examples:

 Employment – i.e., the European Employment Strategy

 Social protection, social inclusion

 Culture

 Education

 Research and development

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S32 The OMC – how does it work?

Instead of using binding rules, the OMC relies on other mechanisms:

• Establishing strategic goals at EU level in certain policy fields –

a process lead by the Council

• Developing EU level guidelines & timetables to achieve these goals

• Translating EU level guidelines into national & regional targets –

a process lead by the Member States’ governments who adapt the EU
level guidelines to their specific circumstances and needs

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S33 The OMC – how does it work? (continued)

• Selecting indicators & benchmarks to measure progress & results –

these are agreed among the Member States participating in the process

• Periodic monitoring, evaluations, peer review and sharing of best

practices to help Member States learn from each other & improve their
performance

• Input by interest groups/ civil society/ citizens to keep the process

open

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S34 The OMC – how does it work? (continued)

The results of the evaluations and the recommendations are NOT binding on
the Member States; NO legal commitments

The role of the European Commission is limited to monitoring &

surveillance - it CANNOT apply sanctions

Use of 'peer pressure' and 'naming & shaming' to provoke

Member States into action where improvements are needed

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S35 The OMC – positive aspects

• Possibilities for increased participation of stakeholders/ citizens/ civil

society

• Enhanced flexibility - which makes it possible for the Member States to

reach agreements and make progress more easily in areas of shared
competence, or coordinating/supporting/supplementing competence where
hard law measures are difficult to adopt

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S36 The OMC – Criticism*

• Limited role for the European Parliament, which only gives advice (non-
binding)

• Parliament is concerned about the democratic legitimacy of the OMC

and it has asked to be more involved to make the OMC more democratic.

*Source: EP, The OMC at a glance, October 2014, available at:

http://www.europarl.europa.eu/EPRS/EPRS-AaG-542142-Open-Method-of-
Coordination-FINAL.pdf

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S37 The OMC – Criticism*

• In 2010, Parliament asked the Council to stop relying on OMC in economic

policy, although it did not oppose its use in some other fields such as social
services

• Analysts also pointed out the OMC’s ineffectiveness due to lack of control
mechanisms & political irrelevance at national level

*Source: EP, The OMC at a glance, October 2014, available at:

http://www.europarl.europa.eu/EPRS/EPRS-AaG-542142-Open-Method-of-
Coordination-FINAL.pdf

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S38 Example for soft governance: The EU framework for
National Roma Integration Strategies (2011)

A targeted approach within a broader social inclusion & anti-poverty

strategy of the EU

Integrated action for inclusion of Roma people in the following fields:

• Education
• Employment
• Healthcare
• Housing
• Access to essential services (water, electricity...)

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 The EU Framework for National Roma Integration Strategies
Who are the stakeholders?

THE EU MEMBER STATES

PROVIDES SUPPORT FOR MEMBER DESIGN & IMPLEMENT NATIONAL
STATES’ WORK & MONITORS INTEGRATION STRATEGIES
PROGRESS & OUTCOMES

REGIONAL & LOCAL LEVEL ROMA COMMUNITIES

AUTHORITIES
CIVIL SOCIETY

ACADEMIA INTERNATIONAL ORGANIZATIONS

http://ec.europa.eu/justice/discrimination/roma/roma-stakeholders/index_en.htm

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S40 Example for soft governance: The EU framework for
National Roma Integration Strategies (2011)

National Roma Integration Strategies designed, implemented,

monitored and evaluated in all Member States

• Policy framework drawn up by the EU

• Funding provided by the EU & the Member States

• Monitoring & evaluation mechanisms: the “Roma platform”

• Partnership with Roma, civil society, regional & local authorities

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S41 Next lecture

Week 1 (EF): Competences and procedures

Week 2 (PH): Enforcing EU law (I): Legal effects of the EU legal order
Week 3 (PH): Enforcing EU law (II): Preliminary rulings
Week 4 (PH): Enforcing EU law (III): Actions in infringement
Week 5 (EF): Actions for annulment (I)
Week 6 (EF): Actions for annulment (II)
Week 7 (EF/PH): Recap lecture & course review
Week 8 (EF/PH): Final workshop including a mock exam; Q&A

Week 9: Exam Week

Week 12: Resit Exams (Q4) Week

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