Why is it so important to study EU law?
COMPETENCES SHARED BETWEEN THE EU AND THE MEMBER STATES
Most competences are shared between the EU and the Member States. Under the principle of subsidiarity, in the areas of shared competences the EU can only intervene if certain objectives set out by the Treaties cannot be attained by the Member States and only if the EU can attain them with greater efficiency than the Member States.
Further, any EU action in those areas must respect the principle of proportionality, i.e. such action “shall not exceed what is necessary to achieve the objectives of the Treaties”. 136 Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality attached to the Treaties establishes not only the conditions for the application of these principles but also a system for monitoring their application. Under the Protocol, national parliaments have been granted extensive powers to police the application of the principle of subsidiarity.
Article 2(2) TFEU states that in areas of shared competences Member States are allowed to act within the limitations imposed by the Treaty provisions as long as the EU is inactive or ceases to be active. Those limitations mean that a Member State cannot adopt measures contrary to the EU’s principles and values, for example, in breach of the principle of non-discrimination on the ground of nationality, 137 or in breach of the principle of loyal co-operation as embodied in Article 4(3) TEU. Further, this provision clearly envisages a situation where the Union has decided to cease exercising its competence in a particular area in which case Member States will regain that area.
Some areas of shared competences are listed in Article 4 TFEU, others neither are those which are neither mentioned in Article 6 TFEU (which lists supporting, co-ordinating or supplementing competences of the EU) nor in Article 3 TFEU (which lists exclusive competences of the EU).
Article 4 TFEU provides the following non exhaustive list of areas falling within shared competences:
- The internal market;
- Social policy with regard to specific aspects defined in the Treaty;
- Economic and social cohesion;
- Agriculture and fisheries, excluding the conservation of marine biological resources;
- Environmental matters;
- Consumer protection;
- Transport;
- Trans-European networks;
- Energy;
- The area of freedom, security, and justice;
- Common safety concerns in public health matters, for aspects defined in the TFEU.
Article 4(3) and (4) TFEU provides that in the areas of research, technological development and space and in the areas of development co-operation and humanitarian aid, the exercise of shared competences “shall not result in Member States being prevented from exercising theirs”.
The Principle of Subsidiarity
The principle of subsidiarity has a long history. It derives from the Catholic doctrine of Thomas Aquinas and has been used by the Roman Catholic Church, in particular by Pope Leo XIII in his Encyclical letter Rerum Novarum (1891),138 Pope Pius XI in his Encyclical letter Quadragesimo Anno (1931)139 and later by Pope John XXIII in his Pacem in Terris (1963)140 to enhance the role of an individual in society in the context of a corporate state (especially a communist state).
According to Pius XI: “It is an injustice, a grave evil and disturbance of right order for a larger and higher association to arrogate to itself functions which can be performed efficiently by smaller and lower societies.”141
In the context of social organization, the principle of subsidiarity means that decisions affecting individuals should always be taken at the lowest practical level, as closely as possible to the individuals concerned and that their initiatives should not be impeded by any authorities in those areas where individuals are the most competent to decide for themselves.
The principle of subsidiarity has its constitutional and political dimension in federations. It allocates powers between federal and local authorities in order to strike a balance between the needs of the federation and the protection of the interests of members of the federation, and thus decides which functions should be performed at the federal level, which should be shared between federal and local levels and which are within the exclusive competence of the latter.
136. Article 25 TFEU.
137. Case 61/77 Commission v Ireland [1978] ECR 417.
138.http://www.vatican.va/holy_father/leo_xiii/encyclicals/documents/hf_l-xiii_enc_15051891_rerum-novarum_en.html (accessed 15/10/2013).
139.http://www.vatican.va/holy_father/pius_xi/encyclicals/documents/hf_p-xi_enc_19310515_quadragesimo-anno_en.html (accessed 15/10/2013).
140.http://www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem_en.html (accessed 15/10/2013).
141. Cited by J. Steiner, “Subsidiarity under the Maastricht Treaty”, in D. O’Keefe and P. Twomey (eds), Legal Issues of the Treaty of Maastricht, 1994, London: Wiley Chancery Law, p 50. See also P. Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law”, (2003) 97(1) American Journal of International Law, pp 38–79.
