5.3 Surrender of powers by member states
Increasing competence should not be confused with a general transfer of powers by the member states to the EU. A general transfer of powers raises the issue of surrender of sovereignty on the part of the member states, in that by simply conferring on the EU the power to redefine its own competences without prerequisite approval by the member states risks turning it into a self-determining super state. However, member states have recognised the need to transfer some sovereignty to the EU to enable its institutions to carry out their goals and tasks.
Transfer was facilitated by the member states providing the EU institutions with competence to make their own laws. This principle is found in Article 5(2) TEU, which provides that ‘the Union shall act only within the limits of the competences conferred upon it by the member states in the Treaties to obtain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the member states’.
A problematic area, as noted above, has been competence creep, where the Commission has assumed implied powers. The power to do so has been recognised by the CJEU in such cases as Commission of the European Communities v Council of the European Communities. European Agreement on Road Transport (Case C-22/70)  ECR 263.
In this case the Court ruled that powers to act could be inferred from the fact that the member states, and Commission did not object to the Council acting when they had the chance to. In other words, their inaction affirmed the power of the Council to act. The consequence is that using these powers diminishes the areas of concurrent competences. As brakes to such competence creep, member states have used the principles of subsidiarity and proportionality and actions against EU institutions. A notable example is UK and Northern Ireland v Council of the European Union (Working Time Directive) (Case C-84/94)  ECR I-05755 in which arguments raised that subsidiarity had not been observed failed. Similarly, arguments that the restrictions imposed by the working time Directive were disproportionate were also rejected on grounds that unless there had been manifest error or misuse of power, the Council must be allowed to exercise its discretion and law-making, in a way which involved bringing in new social policy.
When an EU institution is considering the application of proportionality and subsidiarity principles to the question of whether it has competence to act, the combined effect of a series of rulings from the CJEU is that there are four broad questions to ask:
- Is the matter in question one of shared competence between the EU and the member states?
- Can the objective of the action be sufficiently achieved by the member states?
- Can the objectives be better achieved by the EU?
- If the answers to questions 1 and 3 are yes, is the proposed measure the least restrictive option (proportionality)?