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2 - Competence after Lisbon

The elusive search for bright lines

Published online by Cambridge University Press:  05 June 2012

Diamond Ashiagbor
Affiliation:
University of London
Nicola Countouris
Affiliation:
University College London
Ioannis Lianos
Affiliation:
University College London
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Summary

Introduction

The division of competences between the European Community and the Member States began to cause controversy and entered the mainstream of political debate in the 1980s. Before then, issues of EC competence were largely the preserve of esoteric debates amongst specialist lawyers. The main reason for this shift of emphasis can be found in the evolution of the Community decision-making processes. Until the mid-1980s, the Council of Ministers decided mostly by unanimity. In a supra-national organisation where national governments have the power of veto, the precise delineation of its powers is of limited importance, because any action by the organisation presupposes the agreement of all participating states. Why worry about the scope of EC competence if a national government can block its actions anyway? But the gradual extension of majority voting since the Singe European Act made it a reality that legislation could be passed without the agreement of all governments. Every Member State could potentially find itself in the minority and have to amend its laws to align them with Community legislation despite its opposition at the negotiating table. It therefore became important to determine with more precision the outer boundaries of Community competence. The significance of the competence debate was countenanced by other developments. The extension of the European Parliament's powers through successive Treaty amendments and its determination to exercise them fully, often with the Commission's support, brought the Council to account for its choice of legal basis. Furthermore, the perceived imbalance between the growing competence of the European Community on the one hand and its democratic deficit on the other put additional strain on the competence dynamic.

A major change made by the Treaty of Lisbon is that it contains express general provisions defining the competences of the European Union. These are Article 5 TEU and Articles 2–6 TFEU. These provisions originate and are essentially the same as those contained in the aborted Constitutional Treaty. They serve mostly as a restatement of principles established by the case law but also incorporate some new elements. They do not in themselves increase the powers of the Union, but the EU acquires some new powers as a result of other provisions introduced in specific chapters of the TFEU. In general, the transfer of powers from the Member States to the Union effected by the Lisbon Treaty is considerably less than that effected by the Treaty of Maastricht, which remains the most important contributor to the integration paradigm.

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Publisher: Cambridge University Press
Print publication year: 2012

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