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International Law

Reform Treaty: Taxonomy of Competence

By Bartolus (index)

One of the most important changes brought about by the Reform-Lisbon treaty is the establishment of a taxonomy of competence: It defines - or at least attempts to - who does what in the EC.

The new Treaty maintains the existing but frequently forgotten system of conferred powers. According to that, the EC can only do what the Treaty expressly allows it to do and its competence cannot be extend with the agreement of the member States.

The new Treaty then divides the powers of the Union into three categories:
Competence exclusive to the Union;
Competence shared between the Union and the member States which the latter can exercise when the Union does not exercise it,
And exclusive competence of the member States but in which the Union can provide "support, coördination or supplemental action".

Let's look at what each category comprises.

The Union has exclusive competence in the following areas:
The Customs union;
Competition rules for the functioning of the internal market (thus continuing the process of eurapeanization of competition policy);
Conservation of marine resources as part of the common fisheries policy;
Common external trade policy,
Conclusion of an international agreement in the framework of a legislative act of the Union, when required for the exercise of existing internal competence or if existing internal rules will need changing.

Competence is shared between the Union and the member States in the following domains:
The internal market;
Social policy as specifically defined in the Treaty;
Economic, social and geographic cohesion;
Agriculture and fisheries except of the conservation of marine resources which is a matter of exclusive competence (see above);
Environmental protection;
Consumer protection;
Transport;
Transeuropean networks;
Space;
Energy;
Area of freedom (or lack of it !), security and justice,
Joint security issues concerning the protection of public health as specifically defined in the Treaty.

The member States have exclusive competence but the Union can act to support, coördinate or supplement it in the following areas:
Protection and improvement of human health care;
Industrial policy;
Culture;
Tourism;
Education, vocational training, youth and sport;
Civil protection,
Administrative coöperation.

Ostensibly, the new Treaty does not create any new area of exclusive competence for the Union. But it does finish off usurping all competence of the member States in the area of competition law when the internal market is at stake. New competence is created for space and energy policies which is shared with the member States.

The category of areas of competence that are exclusive to the member States but in which the Union can "support, coördinate and complement" the action of the States is a new one. The ordinary legislative procedure applies in those areas (codecision Council/Parliament and qualified majority in the Council).

The new Treaty reinforces the role of the Union in the areas of freedom, security and justice and defence and in its external action but we'll be looking at those separately.

A certain number of safeguards are introduced to prevent "competence creep" or the arrogation of competence by stealth in favor of the Union. In particular, the existing Article 308 EC (to be renumbered as Article 352), the competence clause, will be amended to exclude all use in the field of the common foreign and security policy and to prevent any harmonization measures in areas where the Treaty express excludes them. The new rendering of Article 308 (to be Article 352) contains a clause obliging the Commission to involve national parliaments in the procedure for the adoption o measures based on that article. On the increased role of national parliaments generally, see our previous post "Reform Treaty - Institutional Changes, part 2 (National parliaments and participatory democracy)".

Full post as published by EU Law Blog on January 13, 2008 (boomark / email).