A shared characteristic of each new treaty was an incremental increase in competences and extension of individual rights, whether economic or social. For background on how those increasing competences and rights came about, look at the evolution of the Treaties in this.
A challenge has been how to guarantee relative rights and competences as they developed and to maintain an institutional balance between EU institutions and member states. Under the Treaties, the CJEU is tasked with that role. The mechanisms available to applicants objecting to competences without legal base and jurisdiction the Court has to hear such applications is explored in Section 11.1.
The Treaties reflect the multilevel governance structure implicit between the EU and member states. In some instances, the EU has exclusive competence to act, whereas in others it shares competences with the member states. A revised Declaration on Competences is attached to the Treaty of Lisbon (No. 18). This confirms the respective rights of member states and the EU.
The Treaties divide competences into exclusive and concurrent, or shared, competences. What those competences are (at the time of writing) is explored in Activity 6. But first, the allocation of competences is underscored by general principles contained in the Treaties.
The EU enjoys exclusive competence in only a few areas. These are customs union, establishing competition rules necessary for the functioning of the internal market, monetary policy for member states that use the Euro, conservation of marine biological resources under the common fisheries policy, common commercial policy and the conclusion of international agreements, a crucial exclusive competence to note in the political climate after the UK referendum vote in 2016.
In most areas, the dividing line is not so clear. Pursuant to Article 4 TFEU, the EU has shared competence with member states in 12 listed areas. These are broad ranging.
Under Article 6, there are also other areas where the EU has either exclusive or concurrent competences: the power to support or complement member states in additional listed areas.
It is in the area of shared competences that most difficulties arise, as the degree of sharing alters according to the subject matter. Importantly, if the EU chooses not to act then the member states retain the competence to act unilaterally.
According to the principle of subsidiarity, in Article 5 TEU, the EU should only act if the member states acting independently could not achieve the result. The question arises whether the presumption for action, under Article 5 TEU, lies with member states.
The sting in the tail of competence is found in Articles 2 (6) and 5 (1) TFEU. These provisions are broad and opened the way to what is called ‘competence creep’ on the part of the Commission. Competence creep is the term given to the slow assumption of powers not expressly granted by the member states but implied in order to carry out competences.
Activity 6 Exclusive, concurrent and complementary competences
Using EUR Lex find and read Articles 4 (1) and 5 TEU Articles and Articles 3, 4, 5 and 6 TFEU.
Now fill in the bubbles indicating the areas where you consider the EU has exclusive competence, those in which it shares competence concurrently with member states, and areas where the EU may only provide support to member states.
Your answers should result in the below general description set out as a tube map.
Academic journals in the field of EU law in recent years are filled with Articles raising questions about the meaning of subsidiarity, and its impact on the relationship between member states and the EU in the field of competences.
If you wish to read around this topic, Further reading includes two Articles that are illustrative of the debate.
The competences set out in the Treaty of Lisbon and broad scope of enacting secondary legislation has seen the Commission act when it considers competences should evolve in a way that requires their expansion. As a result, there was a perceived need on the part of the member states to reign in this tendency and take back control.