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The division of competences in the EU - a legal matter or political choice

Schultz, Eva (2004)
Department of Law
Abstract
This piece of work is focused on the use of the principle of subsidiarity in the legislative process of the European Union, taking as the starting point the work of the European Convention on the Future of Europe and the Intergovernmental Conference (IGC) 2003-2004. It treats issues related to the division of competences in the EU, which the European Convention confronted in its work between March 2002 and June 2003 and, further-more, included in its proposal for a Constitutional Treaty. Moreover, it gives an overview of the process of negotiations of the IGC in 2003-2004, to which the Convention's proposed Constitutional Treaty was made subject. The European Union is moving into a new era in 2004, enlarging its outer borders and its... (More)
This piece of work is focused on the use of the principle of subsidiarity in the legislative process of the European Union, taking as the starting point the work of the European Convention on the Future of Europe and the Intergovernmental Conference (IGC) 2003-2004. It treats issues related to the division of competences in the EU, which the European Convention confronted in its work between March 2002 and June 2003 and, further-more, included in its proposal for a Constitutional Treaty. Moreover, it gives an overview of the process of negotiations of the IGC in 2003-2004, to which the Convention's proposed Constitutional Treaty was made subject. The European Union is moving into a new era in 2004, enlarging its outer borders and its population, bringing in ten new Member States, at the same time deepening its structure, laying down the basis for the European cooperation in a new Constitutional Treaty. The EU of 2004 is a quite different construction than its original counterpart in 1957. In recent years, the EU has faced a wide range of challenges including the paradox of: on the one hand, the citizens' growing expectations on their political leaders and, on the other hand, the citizens' increasing distrust in the European institutions and politics. The EU needed to become at the same time more democratic, more transparent and more efficient to regain the confidence of its citizens. The citizens needed to see clearer who can be held responsible for the decisions made. The division of competences in the European structure and its safeguard mechanisms therefore needed to be clarified. Having opened the way to enlargement, the European Council in Nice in March 2000 called for a deep and wide debate about the future of the European Union. This debate should involve all parties concerned: the political, economic and academic circles as well as the Civil Society, alongside representatives of national parliaments and governments. Following on from Nice, the European Council in Laeken in December 2001 clearly stated that the Union needed to become more democratic, more transparent and more efficient. It set out a series of questions regarding: how the division of powers in the EU could be made more transparent&semic the conclusion as to whether there needed to be a reorganisation of competence&semic and how to ensure that a redefined division of competence would not lead to a creeping expansion of the Union or to intrusion in the exclusive areas of competence of the Member States, while at the same time ensuring that the European dynamic would not come to a halt. These questions are also the basic questions asked in this thesis. The purpose of this work is, primarily, to analyse the innovations of the proposed Constitutional Treaty and to make a first, preliminary assessment of their level of correlation with the goals set out in the conclusions of the European Councils in Nice and in Laeken. Additionally, the text examines to what degree the issue of division of competences can at all be subject to legal principles and judicial control, in relation to the political choices of which it is the consequence. Currently, the first paragraph of Article 5 of the Treaty establishing the European Community (TEC) provides that ''[t]he Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein''. This principle of conferred powers indicates that all Community action must be founded upon a legal basis laid down in the Treaty. First and foremost, the legal basis determines the distribution of competences between the Union and Member State levels by transferring a competence to the European Community from the Member States. Where the Community is not empowered to act, the right to action comes within the residuary competence of the Member States. Moreover, the legal basis determines, together with the principle of subsidiarity and the principle of proportionality, the way in which the Community exercises its competence. The legislative competences conferred on the Community can currently be divided into three types of competences: exclusive, shared and complementary competences. The principle of subsidiarity was introduced into the TEC by the Maastricht Treaty as a mechanism to regulate the execution of the European Community's non-exclusive powers. The principle of subsidiarity is still one of many ''unresolved'' legal issues of the Maastricht Treaty that has not completely produced the results expected from it. Nevertheless, the principle of subsidiarity is one of the key denominators in relation to the questions of division of competences and its delimitation at EU level. As a legal concept, subsidiarity is used as an ex-post control of the legality of Community legal acts. Whereas the division of competences in the area of shared competences mainly has been defined on the basis of case law, there has been little case law on the subsidiarity principle as such. The European Convention proposed to reinforce the principle of subsidiarity, both as a fundamental principle, as laid down in the Constitutional Treaty, and through strengthened political and judicial control. A main innovation of the Constitutional Treaty is the introduction of the national parliaments as democratic check instances in the control of the application of the subsidiarity principle. The increased importance of pre-legislative consultation is an addi-tional advance for the control of the application of the subsidiarity principle. The dynamic character of the principle of subsidiarity, and its application to the division of competences in the EU, must not and will not change with the adoption of a new Constitutional Treaty. European integration and the actions it requires represent a process which will always include a certain degree of political considerations and which cannot entirely be regulated with legal instruments. However, the responsibility of Heads of State and Government when agreeing on a new Constitutional Treaty is to build in a maximum of democratic safeguards in the European legislative system and to be as open and clear as possible about their political choices, which are in the end inevitable if you want to achieve common goals in a construction like the EU. (Less)
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author
Schultz, Eva
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EG-rätt
language
English
id
1561809
date added to LUP
2010-03-08 15:55:29
date last changed
2010-03-08 15:55:29
@misc{1561809,
  abstract     = {This piece of work is focused on the use of the principle of subsidiarity in the legislative process of the European Union, taking as the starting point the work of the European Convention on the Future of Europe and the Intergovernmental Conference (IGC) 2003-2004. It treats issues related to the division of competences in the EU, which the European Convention confronted in its work between March 2002 and June 2003 and, further-more, included in its proposal for a Constitutional Treaty. Moreover, it gives an overview of the process of negotiations of the IGC in 2003-2004, to which the Convention's proposed Constitutional Treaty was made subject. The European Union is moving into a new era in 2004, enlarging its outer borders and its population, bringing in ten new Member States, at the same time deepening its structure, laying down the basis for the European cooperation in a new Constitutional Treaty. The EU of 2004 is a quite different construction than its original counterpart in 1957. In recent years, the EU has faced a wide range of challenges including the paradox of: on the one hand, the citizens' growing expectations on their political leaders and, on the other hand, the citizens' increasing distrust in the European institutions and politics. The EU needed to become at the same time more democratic, more transparent and more efficient to regain the confidence of its citizens. The citizens needed to see clearer who can be held responsible for the decisions made. The division of competences in the European structure and its safeguard mechanisms therefore needed to be clarified. Having opened the way to enlargement, the European Council in Nice in March 2000 called for a deep and wide debate about the future of the European Union. This debate should involve all parties concerned: the political, economic and academic circles as well as the Civil Society, alongside representatives of national parliaments and governments. Following on from Nice, the European Council in Laeken in December 2001 clearly stated that the Union needed to become more democratic, more transparent and more efficient. It set out a series of questions regarding: how the division of powers in the EU could be made more transparent&semic the conclusion as to whether there needed to be a reorganisation of competence&semic and how to ensure that a redefined division of competence would not lead to a creeping expansion of the Union or to intrusion in the exclusive areas of competence of the Member States, while at the same time ensuring that the European dynamic would not come to a halt. These questions are also the basic questions asked in this thesis. The purpose of this work is, primarily, to analyse the innovations of the proposed Constitutional Treaty and to make a first, preliminary assessment of their level of correlation with the goals set out in the conclusions of the European Councils in Nice and in Laeken. Additionally, the text examines to what degree the issue of division of competences can at all be subject to legal principles and judicial control, in relation to the political choices of which it is the consequence. Currently, the first paragraph of Article 5 of the Treaty establishing the European Community (TEC) provides that ''[t]he Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein''. This principle of conferred powers indicates that all Community action must be founded upon a legal basis laid down in the Treaty. First and foremost, the legal basis determines the distribution of competences between the Union and Member State levels by transferring a competence to the European Community from the Member States. Where the Community is not empowered to act, the right to action comes within the residuary competence of the Member States. Moreover, the legal basis determines, together with the principle of subsidiarity and the principle of proportionality, the way in which the Community exercises its competence. The legislative competences conferred on the Community can currently be divided into three types of competences: exclusive, shared and complementary competences. The principle of subsidiarity was introduced into the TEC by the Maastricht Treaty as a mechanism to regulate the execution of the European Community's non-exclusive powers. The principle of subsidiarity is still one of many ''unresolved'' legal issues of the Maastricht Treaty that has not completely produced the results expected from it. Nevertheless, the principle of subsidiarity is one of the key denominators in relation to the questions of division of competences and its delimitation at EU level. As a legal concept, subsidiarity is used as an ex-post control of the legality of Community legal acts. Whereas the division of competences in the area of shared competences mainly has been defined on the basis of case law, there has been little case law on the subsidiarity principle as such. The European Convention proposed to reinforce the principle of subsidiarity, both as a fundamental principle, as laid down in the Constitutional Treaty, and through strengthened political and judicial control. A main innovation of the Constitutional Treaty is the introduction of the national parliaments as democratic check instances in the control of the application of the subsidiarity principle. The increased importance of pre-legislative consultation is an addi-tional advance for the control of the application of the subsidiarity principle. The dynamic character of the principle of subsidiarity, and its application to the division of competences in the EU, must not and will not change with the adoption of a new Constitutional Treaty. European integration and the actions it requires represent a process which will always include a certain degree of political considerations and which cannot entirely be regulated with legal instruments. However, the responsibility of Heads of State and Government when agreeing on a new Constitutional Treaty is to build in a maximum of democratic safeguards in the European legislative system and to be as open and clear as possible about their political choices, which are in the end inevitable if you want to achieve common goals in a construction like the EU.},
  author       = {Schultz, Eva},
  keyword      = {EG-rätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {The division of competences in the EU - a legal matter or political choice},
  year         = {2004},
}