A treaty is a binding agreement between the Member States of the European Union. It defines the objectives of the Union, the operating rules of the European institutions, the operating rules of the European institutions, the procedures for the adoption of decisions and relations between the EU and its Member States. On the basis of these premises, the paper aims to explore the fundamental Treaties on which the European Union is based.
Un trattato è un accordo vincolante fra i Paesi membri dell’Unione europea. Esso definisce gli obiettivi dell’Unione, le regole di funzionamento delle istitutuzioni europee, le regole di funzionamento delle istituzioni europee, le procedure per l’adozione delle decisioni e le relazioni fra l’UE e i suoi Paesi membri. Sulla scorta di tali premesse, l’approfondimento si pone l’obiettivo di esplorare i Trattati fondamentali su cui si basa l’Unione europea.
Parole chiave: Unione europea – trattati – Stati membri
1. The EU Treaties – Introduction - 2. Fundamental freedoms - 2.1. Freedom of Establishment - 2.2. Freedom to Provide Services - 3. What are the Union Institution? - 3.1. The European Parliament - 3.1.1. Composition and Formation - 3.1.2. Legislative and Budgetary Powers - 3.1.3. Supervisory and Elective Powers - 3.2. The Council of Ministers - 3.2.1. Configuration and composition - 3.2.2. Internal Structure and Organs - 3.2.3. Decision-making and Voting - 3.2.4. Function and Powers - 3.3. The Commission - 3.3.1. Composition and Election - 3.3.2. The Role of the President of the Commission and their College - 3.3.3. Functions and Powers - 3.4. The Court of Justice - 3.4.1. The European Court System and its Composition - 3.4.2. Jurisdictions and Judicial Powers - 4. Union Legislation - 4.2. The Ordinary Legislative Procedure - 4.2.1. The Stages of the Ordinary Legislative Procedure - 4.2.2. Informal Trilogues - 4.3. The Special Legislative Procedure - 4.4. The principle of subsidiarity - 5. Union Competences - 5.2. General Competences of the Union - 5.2.1. Harmonization Competence - 5.2.2. The Residual Competence - 5.3. Categories of Union Competences - 5.3.1. Exclusive Competences - 5.3.2. Shared Competences - 5.3.3. Coordinating Competences - 5.3.4. Complementary Competences - NOTE
The European Union (hereinafter “EU”) Treaties are binding agreements between EU Member States. They set out EU objectives, rules for its institutions, parameters for how decisions are made and the relationship between the EU and its Member States. Every action taken by the EU must have its foundation in the Treaties. The Treaties themselves are not static, and indeed are amended from time to time as necessary to make the EU more efficient and transparent, to prepare for new Member States and to introduce new areas of cooperation. The principle EU Treaties are the following: • Treaty on European Union (hereinafter “TEU”); • Treaty on the Functioning of the European Union (hereinafter “TFEU”); • Treaty establishing the European Atomic Energy Community; • Charter of Fundamental Rights of the European Union. This book mainly focuses on the Treaty on European Union and on the Treaty on the Functioning of the European Union. According to Article 1 TEU, the Union shall be founded on the Treaty on European Union and on the Treaty on the Functioning of the European Union, which have the same legal value. These two foundational Treaties provide the groundwork for the Union to replace and succeed the European Community. Specifically, the Treaty on European Union contains the general provisions defining the Union, while the Treaty on the Functioning of the European Union contains the specific provisions with regard to the Union institutions and policies. The Treaties are divided into “Parts”, “Titles”, “Chapters”, “Sections” and “Articles”. In addition, numerous Protocols and the “Charter of Fundamental Rights” form an integral part of the Treaties, according to Article 51 TEU. The table below illustrates the Structure of the TEU and the TFEU: The Treaties are designed to be “framework treaties” as, in fact, they provide the “framework” for subsequent secondary law. Indeed, Parts III and V of the TFEU set out the policy areas in which the Union can act. In order to legislate in these policy areas the Union must have legislative competence, which are provided in Part III or V of TFEU, under the headings of the specific policy at issue.
The study of European Company Law requires an understanding of the fundamental freedoms set forth in the EU legislative framework. Specifically the freedom of establishment and the freedom to provide services are two fundamental freedoms that ensure the free movement of people and services, in coherence with the Treaty of Rome, the provisions of which are now incorporated in the TFEU.
Article 49 TFEU states that restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State must be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54 TFEU, in a Member State, under the same conditions laid down by that country for its own nationals, subject to the provisions of relating to legal capital.
Regarding the freedom to provide services, Article 56 TFEU states that restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of this Chapter to nationals of a third country that provide services and which are established within the Union. Article 57 TFEU specifies that acts shall be considered to be “services” within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. In particular, “services” shall include: a) activities of an industrial character; b) activities of a commercial character; c) activities of craftsmen; d) activities of the professions. Without prejudice to the provisions of the Chapter relating to the right of establishment, a national providing a service may, in order to do so, temporarily pursue their activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
The Union Institutions are primarily identified in Article 13 TEU: in particular, the Union shall have an institutional framework that aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. The Union’s Institutions are: • the European Parliament, • the European Council, • the Council, • the European Commission (hereinafter referred to as “the Commission”), • the Court of Justice of the European Union, • the European Central Bank, • the Court of Auditors. According to the same Article 13 TEU, each Institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein. The Institutions are tasked with practice mutual sincere cooperation, meaning essentially that while each Institution operates within the powers delegated to it by the Treaties, it has an obligation to cooperate with the other Institutions in the achievement of its goals. Therefore, the seven governmental Institutions of the European Union listed in Article 13 TEU represent the core “players” in the Union. However, each of these Institutions is characterized by a distinct composition and by a different decision-making mode. The provisions on the Union Institutions are split between the Treaty on European Union and the Treaty on the Functioning of the European Union. This book focuses on the four main Union Institutions, namely: • the European Parliament, • the European Council, also known as the Council of Ministers, • the Commission; • the Court of Justice of the European Union. These Institutions cooperate in the creation of European legislation. However, as will be discussed in the following chapters, the European Union cannot legislate in all areas of social life, and there are in fact two constitutional limits to Union legislation. First, according to Article 5 TEU, based on the principle of conferral, the Union must act within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. All competences not expressly conferred upon the Union in the Treaties remain with the Member States. The second constitutional limit to the exercise of Union competences arise from [continua ..]
The Parliament constitutes – with the Council – a chamber of the Union legislature. It is directly elected by the European citizens and it is not only the most democratic institution – in light of its elective “appointment” – but also the most supranational institution of the European Union [1]. The Treaty on European Union defines the powers of the European Parliament in Article 14: the European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission. The definition contained in Article 14 TEU therefore distinguishes between four types of powers: legislative and budgetary powers as well as supervisory and elective powers, each of which will be examined in the following paragraphs.
Article 14 TEU defines the size and the composition of the European Parliament, as well as how the elections of members are conducted. On the initiative of the European Parliament and with its consent, the European Council must unanimously adopt a decision establishing the composition of the European Parliament. In addition, Article 14 TEU provides information on how the individual members of Parliament are elected. In particular, the members of the European Parliament are elected for a term of five years by direct universal voting in a free and secret ballot. The European Parliament shall elect its President and its officers from among its members. Generally speaking, the European Parliament shall be composed of representatives of the Union’s citizens. The European Parliament has a maximum size of 751 members. The European Council decides on the national “quotas” for the Union’s parliamentary representatives, and has recently taken a formal decision on the principles governing the allocation of national “quotas” within Parliament. Currently, the distribution of seats must be “digressively proportional” within a range spanning from six to ninety-six seats.
The European Parliament’s primary power lies in the making of European law. Its participation in the legislative process may take place at two moments in time [2]. First, Parliament may informally propose new legislation: in fact, according to Article 225 TFEU, the European Parliament may, acting by a majority of its component members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons. However, the Parliament is not entitled to formally propose bills as the task to make legislative proposals is a constitutional right of the Commission. As a consequence of the above, the principal legislative task of the European Parliament starts later, after the Commission has submitted a proposal to the European legislature. The European legal order has a number of different legislative procedures. In particular, the Treaties distinguish between an “ordinary” legislative procedure and a number of “special” legislative procedures. First of all, it is important to underline that the ordinary legislative procedure is defined as “the joint adoption by the European Parliament and the Council” of a proposal from the Commission, while special legislative procedures cover various degrees of parliamentary participation [3]. As regards the European Parliament’s budgetary powers, the Union revenue is fixed by the Council and the Member States. Consequently, the European Parliament’s budgetary powers focus not on income, but on expenditure.
Parliamentary supervisory powers typically include the power to debate, question, and investigate. As regard the power to debate, Article 249(2) TFEU provides that the Commission shall publish annually, no later than one month before the opening of the session of the European Parliament, a general report on the activities of the Union. Then, the European Parliament shall discuss, in open session, the annual general report submitted by the Commission. The power to question the European executive branch is formally enshrined only for the Commission [4]. In fact, according to Article 230(2) TFEU, the Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members. The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council. The European Parliament also has the formal power to investigate. Article 226(1) TFEU provides that in the course of its duties, the European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged violations or errors in administration in the implementation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings. Finally, European citizens enjoy the right to “petition” the European Parliament. As regards the Parliamentary elective powers, Article 17(7) TEU describes the involvement of the European Parliament in the appointment of the Commission as follows: taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. The Council, by common accord with the President-elect, shall adopt a list of the other persons that it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States. The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a [continua ..]
The functions of the Council have changed over the time. Today, this institution is best characterized as the executive chamber within the Union legislature.
As regards the configuration and composition of the Council, according to Article 16 TEU, the Council shall consist of a representative of each Member State at a ministerial level, who may commit the government of the Member State and cast its vote. Therefore, within the Council, each national minister represents the interests of “their” Member State. These interests may vary according to the subject matter decided in the Council. Indeed, according to Article 16(6) TEU and depending on the subject matter at issue, the Council may meet in different configurations, a list of which has been adopted in accordance with Article 236 of the Treaty on the Functioning of the European Union: COUNCIL CONFIGURATIONS 1 General Affairs 2 Foreign Affairs 3 Economic and Financial Affairs 4 Justice and Home Affairs 5 Employment, Social Policy, Health and Consumer Affairs 6 Competitiveness (Internal Market, Industry, Research and Space) 7 Transport, Telecommunications and Energy 8 Agriculture and Fisheries 9 Environment 10 Education, Youth, Culture and Sport The Treaties only define the tasks of the first two Council configurations: the General Affairs Council and the Foreign Affairs Council. In particular, Article 16(6) TEU states that the General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liason with the President of the European Council and the Commission. Whereas, the Foreign Affairs Council shall elaborate the Union’s external actions on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s actions are consistent.
The Council has developed committees to assist in managing its volume of work. Since the early formulations of the European Union, there has been a committee – which was then made permanent under the 1957 ECC Treaty – composed of representatives of the Member States that provided support to the Council. Today, Article 16(7) TEU provides for a Committee of Permanent Representative of the Governments of the Member States that is responsible for preparing the work of the Council.
The Council will – physically – meet in Brussels to take decisions. The meetings are divided into two part, due to the fact that according to Article 16(8) TEU, the Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities. The Commission will attend Council meetings, even though it is not a formal member of the Council and is thus not entitled to vote. The quorum within the Council is as low as it is theoretical: a majority of the members of the Council are required to enable the Council to vote [6]. Decision-making in the Council has two principal forms: unanimous voting and majority voting. A unanimous vote requires the consent of all national ministers and is required in the Treaties for delicate political questions. However, Article 16(3) TEU reads that the Council shall act by a qualified majority except where the Treaties provide otherwise, therefore the constitutional default is the qualified majority. One of the most debated constitutional questions in the European Union is the issue of what constitutes a qualified majority of Member States in the Council. Originally, the Treaties had instituted a system of weighted votes, correlated with the size of the Member State populations. This system could be qualified as digressively proportional. However, on 1 November 2014, a completely new system of voting in the Council was put in place in which each member of the Council has one vote. Indeed, Article 16(4) TEU provides that, from 1 November 2014 onwards, a qualified majority shall be defined as: (i) at least 55% of the members of the Council, (ii) comprising votes from at least fifteen members, which (iii) represent Member States that together comprise at least 65% of the population of the Union. A blocking minority may therefore be constituted by 45% of the members of the Council or those that represent at least 35% of the population of the Union, but must in either case include at least four Council members, failing which the qualified majority shall be deemed attained. The other arrangements governing the qualified majority are set forth in Article 238(2) of the Treaty on the Functioning of the European Union. In conclusion, this new voting system abolishes the previous system of weighted votes in favour of a system that grants each [continua ..]
Article 16 TEU recapitulates the functions and powers of the Council as follows: the Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties. This definition clarifies that, currently, the Council is only a co-legislator, meaning a branch of the bicameral Union legislature, and, like Parliament, it must use its legislative powers in public. In addition, Council and Parliament also share in the exercise of the budgetary function [7]. Moreover, the European Council now decides on the general policy choices. Finally, the Council has important coordinating functions within the European Union: in fact, according to Article 121(1) TFEU, Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council.
According to Article 17(1) TEU, the Commission is tasked with promoting the general interests of the Union and taking appropriate initiatives to achieve those goals. It therefore acts as a “motor” of European integration [8].
In compliance with Article 17(4) TEU, the Commission, following its appointment between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents. After 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number (Article 17(5) TEU). The members of the Commission are chosen from Member State nationals on a rotating basis to ensure representation of the demographical and geographical range of the European Union. Its members are chosen, according to Article 17(3) TEU, on the grounds of their general competence and European commitment from persons whose independence is beyond doubt. The term of a member of the Commission is five years, and during this period the member must be “completely independent”; in fact, the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action that is incompatible with their duties or the performance of their tasks. As regards the selection of the members of the Commission, after the initial formation when the Commission was “appointed”, the election process now has two stages. First, the President of the Commission is elected. The President will have been nominated by the European Council in accordance with its qualified majority. The nominated candidate must then be “elected” by the European Parliament [9]. If not confirmed by the Parliament, the European Council must identify another candidate. In fact, in accordance with Article 17(7) TEU, taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council must within one month propose a new candidate who shall be elected by the European Parliament following the same procedure. In the second stage of elections, the Council, by common accord with the President-elect, will adopt the list of the other persons that it proposes for appointment as members of the Commission. These candidates are selected [continua ..]
The Commission President helps in the selection of “their” institution. This position as the “Chief” Commissioner above “their” college is clearly established by the Treaties [10]. The powers of the President of the Commission are identified in Article 17(6) TEU, which reads that he or she shall: • set forth guidelines within which the Commission is to work; • decide on the internal organization of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body; • appoint Vice-Presidents, including the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission. The three powers of the President of the Commission cited above are extraordinary. In fact, he or she can firstly lay down the political direction of the Commission in the form of strategic guidelines. These Presidential guidelines will subsequently be translated into the Commission’s Annual Work Programme [11]. Second, the President must decide on the internal organization of the Commission. The Article 248 TFEU reads that, without prejudice to Article 18(4) of the Treaty on European Union, the responsibilities incumbent upon the Commission shall be structured and allocated among its members by its President, in accordance with Article 17(6) of that Treaty. The President may reshuffle the allocation of those responsibilities during the Commission’s term of office. During this term, the Members of the Commission shall carry out the duties devolved upon them by the President under his or her authority. Third, the President of the Commission can appoint Vice-Presidents from “within” the Commission [12]. It is worth noting that a member of the Commission shall also resign if the President so requests. This also extends to the High Representative of the Union for Foreign Affairs and Security Policy, which in accordance with the procedure set out in Article 18(1), must also resign upon request of the President. Finally, it is possible to recognize another power – even if it is not expressly mentioned in Article 17(6) TEU – which is, in fact, that the President represents the Commission. As regards the “ministerial” responsibilities into which the present Commission is structured, they are divided in twenty-seven “portfolios”. Each Commissioner is thereby responsible for “their” [continua ..]
The Treaties provide a precise constitutional overview of the functions and powers of the Commission in the Article 17 TEU. In particular, the Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. Finally, it shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements. The provision thus identifies six different functions. The first three constitute the Commission’s central functions. First, the Commission is tasked with the function to “promote the general interests of the Union” through initiatives. Therefore, it acts as a “motor” of European integration. In order to fulfil this – governmental – function, the Commission is given the (almost) exclusive right to formally propose legislative bills [13]. The second function of the Commission is to “ensure the application” of the Treaties. Therefore, this function covers a number of powers that are both legislative and executive in nature. The Commission may thus be entitled to apply the Treaties by adopting secondary legislation. These acts may be adopted directly under the Treaties; or, under powers delegated to the Commission from the Union legislature [14]. The third function of the Commission is to oversee the Union, acting as a “prosecutor”. It shall thus “oversee the application” of European law. The policing of European law includes the power to monitor and to explore violations of European law. The powers are actually best defined in the framework of European competition law, but can be seen throughout many different areas of law, including European Company Law. Where a violation of European law has been recognized, the Commission may bring the matter before the Court of Justice of the European Union, according to Article 258 TFEU.
The Court represents the judicial branch of the European Union. According to Article 19(1) TEU, the Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. The stated task of the Court is to ensure that in the interpretation and application of the Treaties the law is observed.
The Union has currently one specialized court called the “Civil Service Tribunal”. The Court of Justice thus represents a three-tiered system of courts, in accordance with the Article 19(1) TEU and its structure can be represented as follow: Article 19(2) TEU, as regards the Court of Justice’s composition, reads that the Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General. The General Court shall include at least one judge per Member State. The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed.
The jurisdiction of the Court of Justice of the European Union is compulsory but – according to Article 13(2) TEU – within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out therein. The functions and powers of the Court are categorized in Article 19(3) TEU and include that, in particular, the Court of Justice of the European Union shall, in accordance with the Treaties: • rule on actions brought by a Member State, an institution or a natural or legal person; • give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; • rule in other cases provided for in the Treaties. The provision distinguishes the judicial tasks by dividing between direct and indirect actions. The former are brought directly before the European Court. The latter arrive at the Court indirectly through preliminary references from national courts [15]. The powers of the Court under the preliminary reference procedure are set out in Article 267 TFEU, according to which the Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: • the interpretation of the Treaties; • the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; As discussed more in detail in the next Chapters of this Book, where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. To the contrary, where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal must bring the matter before the Court. Further, if such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. By contrast, there exist a number of direct actions set out in the Treaty on the Functioning of the European Union, in particular, the latter distinguishes between enforcement actions brought by the Commission or a Member State, judicial review proceedings for actions and [continua ..]
4.1. Introduction The Treaties identify two types of legislative procedures: an ordinary legislative procedure and special legislative procedures. Ordinary legislation must be adopted – as will be illustrated in the following chapters – through a complex formal procedure that may, in the most extreme situation, comprise three rounds of review. This is an evolution from the previous procedure, in which the Union would seek to adopt legislation after a first and the second reading through the use of informal trilogues between the Parliament, the Council and the Commission. The Union legislator is – usually – a subsidiary legislator. As discussed more in detail below, and recalling that the Union is permitted to act only within the competences bestowed upon it by the Treaties, the exercise of the non-exclusive competences of the Union is necessarily left to national legislation, with few exceptions, referred to as the principle of subsidiarity.
Article 289 TFEU illustrates the ordinary legislative procedure, which consists 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. Indeed, ordinary legislation must be adopted following this complex formal procedure, according to which the European Parliament and the Council act as co-legislators with symmetric constitutional rights. European legislation is thus seen as the result of a “joint adoption” by both institutions.
The ordinary legislative procedure has seven stages. Article 294 TFEU describes five stages, while two additional stages are set out in Article 297 TFEU. 1) Proposal stage. Under the ordinary legislative procedure, the Commission shall submit a proposal to the European Parliament and the Council. This means that the Commission has – with few exceptions – the exclusive right to submit a legislative proposal. 2) First reading. The European Parliament shall adopt its position at first reading and communicate it to the Council. If the Council approves the European Parliament’s position, the act concerned shall be adopted with the text that corresponds to the position of the European Parliament. If the Council does not approve of the European Parliament’s position, it shall adopt its position at first reading and communicate it to the European Parliament. The Council shall inform the European Parliament of all the reasons that led it to adopt its position at the first reading. The Commission shall inform the European Parliament of its position as well. 3) Second reading. There are several steps involved with the second reading. Within three months of the communication from the Council containing its position at the first reading, the European Parliament may: a. approves the Council’s position at first reading or not take a decision, at which point the act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council; b. reject, by a majority of its component members, the Council’s position at first reading, and the proposed act shall be deemed not to have been adopted; c. proposes, by a majority of its component members, amendments to the Council’s position at first reading, at which point the text thus amended is forwarded to the Council and to the Commission, which shall deliver an opinion on those amendments. If, within three months of receiving the European Parliament’s amendments, the Council, acting by a qualified majority: a. approves all those amendments, the act in question shall be deemed to have been adopted; b. does not approve all the amendments, the President of the Council, in agreement with the President of the European Parliament, shall within six weeks convene a meeting of the Conciliation Committee. The Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. 4) Conciliation [continua ..]
The Trilogues represent the primary expression of the informal institutional arrangements in tripartite meetings. They combine the representatives of the three institutions in an “informal framework”. According to the Joint Declaration on Practical Arrangement for the Codecision Procedure: “cooperation between the institutions in the context of codecision often takes the form of tripartite meetings (“trilogues”). This trilogue system has demonstrated its vitality and flexibility in increasing significantly the possibilities for agreement at first and second reading stages, as well as contributing to the preparation of the work of the Conciliation Committee. Such trilogues are usually conducted in an informal framework. They may be held at all stages of the procedure and at different levels of representation, depending on the nature of the expected discussion. Each institution, in accordance with its own rules of procedure, will designate its participants for each meeting, define its mandate for the negotiations and inform the other institutions of arrangements for the meetings in good time”. They may be held at all stages of the ordinary legislative procedure.
The Treaties also recognize three special legislative procedures. In particular, Article 289(2) TFEU states – as regards the special legislative procedure – that in the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall be done through a special legislative procedure. In those cases, the acts are adopted by one of the two institutions: the European Parliament or the Council; therefore, they will not be the result of a “joint adoption” of both institutions as in the ordinary procedure. Article 289(2) TFEU recognizes two variants: 1) the European Parliament acts as the dominant institution, with the mere “participation” of the Council in the form of “consent”; 2) the Council is the dominant institution, with the Parliament either participating through its “consent” or in the form of “consultation”. The first two special procedures may be categorized as the “consent procedure”, while the third special procedure can be defined as the “consultation procedure”. The crucial characteristic of the “consent procedure” are that it requires one institution to consent to the legislative bill of the other.
The principle of subsidiarity is a general constitutional principle of the European Union. Article 5(3) TEU states that, under the principle of subsidiarity, in areas that do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at regional and local level, and that, by reason of the scale or effects of the proposed action, are better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. The definition clarifies that subsidiarity is only to be applied within the sphere of the Union’s non-exclusive powers and thus confirms that the European principle of subsidiarity is a principle of cooperative federalism [17].
5.1. The Principle of Conferral The principle of conferral is defined in Article 5 of the TEU as follows: 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. According to this definition, the European Union is neither “sovereign” nor a “state”, for these reasons its powers are not inherent powers and they must be conferred – under the principle of conferral – by the European Treaties. The Treaties do not itemize the Union’s legislative “competences” in a single list. Instead, the Treaties attribute legal competence for each and every Union activity in the corresponding Treaty title. Each policy area then comprises a provision – or more than one – on which Union legislation can be based.
In principle, the Treaties ensure special competences within each policy area. In addition to these thematic competences, the Union legislator has two general competences: Article 114 TFEU provides the Union’s “harmonization competence” and Article 352 TFEU sets forth its “residual competence”. Both competences cut – horizontally – through the Union’s sectoral policies, and have even been used to develop policies not expressly mentioned in the Treaties [18].
On the basis of Article 114 TFEU, the European Union is authorized to adopt measures for the approximation of national laws that have as their object the establishment and functioning of the internal market. This is the so-called “horizontal competence”.
Article 352 TFEU represents the most general competence within the Treaties, in fact, it allows the Union to legislate or act as follows: if action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. The competence of Article 352 TFEU may be used in two ways. First, it can be used in a policy title in which the Union is already given a specific competence, but where the latter is considered not sufficient to achieve a specific objective. Second, the residual competence can be used to improve a policy area that has no specific title within the Treaties [19]. The conceptual limits of the so-called “residual competence” are expressed in Article 352(3) TFEU and Article 352(4) TFEU. Firstly, measures based on this Article shall not entail harmonisation of Member States’laws or regulations in cases where the Treaties exclude such harmonization. Secondly, Article 352 TFEU cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy. In addition to the conceptual limits above, the European Court of Justice has also identified an implied limitation to the Union’s residual competence. In fact, the Court of Justice accepted that Article 352 TFEU could be used for “minor” amendments to the Treaties, but, at the same time, insisted that it could not be used to affect “qualitative leaps” [20] that represent great changes to the constitutional identity of the European Union.
The competences of the Union are “enumerated” and are “conferred” by the European Treaties [21]. The majority of the Union’s competences are listed in Part III of the Treaty on the Functioning of the European Union. The Treaties today distinguish between various categories of Union competence in Article 2 TFEU, in particular: 1) when the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, while the Member States can do so themselves only if so empowered by the Union or for the implementation of Union acts; 2) when the Treaties confer on the Union a competence that is shared with the Member States in a specific area, both the Union and the Member States may legislate and adopt legally binding acts in that area, to the extent that the Member States shall exercise their competence to the extent that the Union has not exercised its competence or to the extent that the Union has decided to cease exercising its competence; 3) the Member States shall coordinate their economic and employment policies within arrangements as determined by the same Treaty on the Functioning of the European Union, which the Union shall have competence to provide; 4) 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; 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. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonization of Member States’ laws or regulations. According to what stated above, the Treaties expressly recognize four general competence categories: exclusive competences, shared competences, coordinating competences, and complementary competences. Articles 3 to 6 TFEU link the various Union policies to a particular competence category.
For the European legal order, exclusive competences are defined, according to Article 2(1) TFEU, as areas in which only the Union may legislate and adopt legally binding acts. The Member States will only be enabled to act if so empowered by the Union or for the implementation of Union acts. Article 3(1) TFEU expressly identifies five policy areas in which the Union has exclusive competence: 1) the customs union; 2) the establishment of the competition rules necessary for the functioning of the internal market; 3) monetary policy for the Member States whose currency is the euro; 4) the conservation of marine biological resources under the common fisheries policy; 5) the common commercial policy. Article 3(2) TFEU creates much greater constitutional misunderstanding, as it states that the Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope. Therefore, in addition to the five constitutionally fixed exclusive competences – mentioned in Article 3(1) TFEU – the Union legal order allows for the possibility of an active growth of its exclusive competences in the international sphere.
Shared competences represent the “normal” competences of the European Union. In fact, Article 4(1) TFEU states that European Union competences will be shared where the Treaties confer on it a competence that does not relate to the areas referred to in Articles 3 and 6 TFEU, in other words: areas of exclusive or complementary European Union competence. Within a shared competence, Article 2(2) TFEU states that the Union and the Member States may both legislate. However, according to the same Article 2(2) TFEU, the Member States shall exercise their competence to the extent that the Union has not exercised its competence. According to Article 4(2) TFEU, shared competence between the Union and the Member States applies in the following principal areas: 1) internal market; 2) social policy, for the aspects defined in this Treaty; 3) economic, social and territorial cohesion; 4) agriculture and fisheries, excluding the conservation of marine biological resources; 5) environment; 6) consumer protection; 7) transport; 8) trans-European networks; 9) energy; According to Article 4(3) TFEU, 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 must not result in Member States being prevented from exercising theirs. Article 4(4) TFEU states that in the areas of developmental cooperation and humanitarian aid, the Union shall have competence to carry out activities and to conduct a common policy. However, the exercise of that competence shall not result in Member States being prevented from exercising their own competence. These two final paragraphs of Article 4 TFEU therefore recognize special types of shared competences, which have been defined as parallel competence.
Coordinating competences are defined in the third paragraph of Article 2 TFEU, according to which the Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide, and in Article 5 TFEU that states as follows: the Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies. Indeed, there are specific provisions that shall apply to those Member States whose currency is the euro. Further, the Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies. The Union may also take initiatives to ensure coordination of Member States’ social policies. The constitutional character of coordinating competences continues to be largely undefined. In fact, Articles 2 and 5 TFEU let only deduct that the European Union provide “arrangements” for the Member States in order to exercise their competences in a coordinated way. This may include the adoption of “guidelines” and “initiatives to ensure coordination”. They should be positioned, between shared and complementary competences. Therefore, coordinating competences need to be normatively stronger than complementary competences.
Despite that the term “complementary competence” is not used in Article 2(5) TFEU, however, it seems to be the best way generically to refer to actions to support, coordinate or supplement the actions of the Member States. In fact, Article 6 TFEU states that the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The mentioned Article lists the following seven areas: 1) the protection and improvement of human health; 2) industry; 3) culture; 4) tourism; 5) education, vocational training, youth, and sport; 6) civil protection; 7) administrative co-operation.
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Copyright G. Giappichelli Editore - 2020
ISSN 2499-3158- Diritto ed Economia dell'Impresa (Online)
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