PRINCIPLE OF CONFERRAL

SUBJECT: European Union Constitutional and Administrative

Law
 CONTENTS

1. Introduction .....................................................................................................3

2. Background......................................................................................................4

3. Principle of Conferral: identity........................................................................5

4. Different types of competences ......................................................................6

5. Relationship with other principles...................................................................8

6. Case of Court...................................................................................................8

7. Conclusion.....................................................................................................10

8. Bibliography/Webgraphy ..............................................................................11
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1. INTRODUCTION

The European Union is an economically and politically unique union of various

states and citizens, which has its origins in the European Coal and Steel Community of

1957 and currently has 27 Member States. In addition to promoting security,

development, stability and the free movement of persons, goods and capital, the Union

has its own legislative and executive powers, an independent judiciary and a central

bank. The European Union plays a key role today as it preserves values and principles,

consolidates peace, diversity and solidarity among the people of Europe. To pursue its

goals, the Union has a set of institutions, among which we find, for example, the

European Parliament, the European Council or the European Commission.

With the constant enlargement and European integration, several changes have been

felt over the years, particularly with regard to the Union's competences and the

separation/repartitioning of its powers. In fact, the founding Treaties of the Union did

not grant it original/generic competences, or as they usually call it, it does not possess

"kompetenz-kompetenz"1. In other words, these competences are always derived from/

conferred by the Member States, which means that the Union has only the competences

that are granted to it by the Member States. So, as long as the competences have not

been transferred to the Union by the Member States, they belong exclusively to those

Members.

That is why the conferral principle is one of the most important fundamental

principles of the European Union today. Basically, it expresses the idea that European

Union only acts within the limits of the competences that European Union countries

have conferred upon it in the Treaties to perform the acts necessary to further its

objectives.
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Guerra Martins, Ana, Manual de Direito da União Europeia, 2ª ed., Almedina, 2017. Pp 317

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2. BACKGROUND

The principle of conferral has always been present in European Community law and

its process of European integration. In fact, the separation of powers is a fundamental

value of any international entity.

Prior to the Maastricht Treaty (Treaty on European Union), the 1957 Treaty of

Rome provided for the division of competences between the Community and its

Member States. But in addition to the powers expressly attributed to the Community,

there was a clause (article 308 in the Amsterdam Treaty's wording) that allowed the

Council to adopt the appropriate provisions in an action, even if the Treaty did not

confer the necessary powers to do so (as if it were a kind of flexibility clause). However,

this and some institutional changes introduced by the Single European Act (SEA) of

1987 (such as the extension of qualified majority voting and the reduction of the State’s

right of veto on community decisions) led to a growing uncertainty about the limits of

European Community competences. As a consequence, the issue of the division of

competences came to the spotlight with the Maastricht Treaty, which tried to resolve the

problem. Later, it was with the Declaration on the Future of Europe that greater

emphasis was placed and greater results were achieved, particularly with regard to

"establishing and maintaining a more precise delimitation of powers between the

European Union and the Member States, respecting the principle of subsidiarity"2.

However, the failure of the Treaty establishing a Constitution for Europe (TECE) and

the desire to overcome the crisis made it possible to create a new Treaty, which would

be signed in 2007. That new Treaty (the Lisbon Treaty) was composed of two main

Treaties (Treaty on European Union and Treaty on the Functioning of the European

Union) that, according to the thematic presented in this

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paperwork, established and clarified the division of powers between the European Union

and its Member States.

3. PRINCIPLE OF CONFERRAL: IDENTITY

Therefore, as mentioned, the principle of conferral, also known as the principle of

attributed powers, is intended to show that European Union only acts within the limits of

the competences that European Union countries have conferred upon it in the Treaties to

perform the acts necessary to further its objectives. In turn, it is foreseen in the Treaty on

European Union (TEU), in a combination of article 4 and article 5.

Precisely, article 5 expressly states that “the limits of Union competences are

governed by the principle of conferral” and “shall act only within the limits of the

competences conferred upon it by the Member States in the Treaties” That is, in other

words, that the competences of European Union can only be executed when the Treaties

can identify the respective enabling rules. On the other hand, all competences that are

not provided for the Treaties will belong to the Member States. We can find this idea

expressly in article 4 of the TEU, which states that “in accordance with article 5,

competences not conferred upon the Union in the Treaties remains with the Member

States”, just as we also find it directly in number 2 of article 5 (final part).

As a consequence of this idea, this principle will inhibit the European Union from

determining its own attributions and powers. As has been mentioned, the Union does not

have its own/generic competences, so the Member States will have to transfer them.

Likewise, all institutions inherent in the Union are limited by the principle of conferral

under number 2 of article 13 of the TEU, which states that “each institution shall act

within the limits of the powers conferred on it in the Treaties, and in conformity with the
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procedures, conditions and objectives set out in them”. Thus, the institutions must act

within the limits of the competence entrusted to them in the Treaties and cannot invade

as each other's powers. “As the institutions can act only in so far as the powers are

attributed to them, the Court of Justice of the European Union would annul acts adopted

by an institution that arrogates a power to itself, which belongs to another institution”3.

For these reasons, the principle of conferral is effectively a control mechanism,

because not only seeks to ensure a clear division of powers, but also imposes the limits

on the actions of the Union itself. The separation of powers, in all aspects of Democratic

States under the Rule of Law, guarantees the effectiveness of the fundamental rights of

individuals, by bringing legitimacy and control in the exercise of powers. In this way,

there will be greater prevention of usurpation of powers and rights of citizens in the

Member States, ensuring that many of the major issues are within the scope of those

States. In the same way, it allows the citizens of the Member States to have a greater

notion and clarity regarding competences, considering their distribution, different

categories and the way they are used.

4. DIFFERENT TYPES OF COMPETENCES

As mentioned, the Lisbon Treaty intended to provide the European Treaties with

greater transparency and rigor in terms of competences. And because of that, this Treaty

provided a section for categories and areas of Union competence for a better

understanding. Therefore, they are expressed in the Treaty on the Functioning of the

European Union (TFEU), more particularly in articles 2 to 6. Therefore, within the

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competences contained in these articles we can divide them into three categories:

exclusive competences, shared competences and supporting competences.

The first one (exclusive competence) is established in article 3 of the TFEU and

means that the European Union is the only one who is capable of legislate and adopt

binding acts in areas such as the common commercial policy, customs union or monetary

policy for euro area countries. That is, “if the EC [European Community] enjoys

exclusive competence in a particular area, Member States are prevented from acting

unilaterally or collectively in that area, irrespective of whether or not the Community

has already acted, unless the Community has explicitly authorized them to implement

certain measures”4.

The second category (shared competences) is established in article 4 of the TFEU

and means that both the Union and the Member States are empowered to legislate and

adopt binding acts in areas like internal market, transports, energy, environment or

consumer protection. In other words, “according to article 4 (1), the Union shall share

competence with the Member States where the Treaties confer on it a competence which

does not relate to the areas referred to in articles 3 and 6, thus making shared

competence the general rule”5.

The third category (supporting competences) is established in article 6 of the TFEU

and in those situations, the Union only acts to support or coordinate the action of the

Member States in areas such as industry, culture or tourism. “The EU can only intervene

to support, coordinate or complement the action of EU countries”6.

4
Kaczorowska, Alina, European Union Law, Routledge-Cavendish, 2009. Pp 89 5 Rosas
A., Armati L., EU constitutional law: an introduction, 3 ed., Hart Publishing, 2018. 6
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:ai0020
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In addition to these categories of powers, we must be aware that the Treaties provide

the possibility of a flexibility clause for the filling of gaps under Article 352 of the

TFEU. These are subsidiary powers, which means that “where the EU has no explicit or

implicit powers to achieve a Treaty objective concerning the common market, Article

352 of the Treaty on the Functioning of the EU allows the Council, acting unanimously,

to take the measures that it considers necessary”7.

5. RELATIONSHIP WITH OTHER PRINCIPLES

It is also important to mention that according to the provisions of number 1 of article

5 of the TEU, the Union’s competences are governed by the principles of subsidiarity

and proportionality. Basically, these principles are all interconnected because the

European Union only can act if the action is included within the powers attributed to the

Union (in accordance with the principle of conferral), if such action is more effective

than a

national, regional or local action (except where the Union has exclusive competence) in

conformity with the principle of subsidiarity, and if the content of that action does not

exceed what is necessary to achieve the objectives set out by the Treaties under the

principle of proportionality.

6. CASE OF COURT

Taking the principle of conferral into account, we can see that over the years we can

find several cases that concern situations about the definition and distribution of
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competences. Within these cases, we can have as example the Case C-589/15 P of

September 12, 2017.

This case-law demonstrates the situation where A. Anagnostakis, in 2012, sent to

the European Commission a proposal for a citizens’ initiative, whose object would be to

establish in Union Law “the state of necessity, in accordance with which, when the

financial and political existence of a Member State is threatened by the servicing of

abhorrent debt, the refusal to repay that debt is necessary and justifiable”8, based on

articles 119 to 144 of TFEU regarding to economic and monetary policy. It turned out

that the Commission refused to register this proposal because it considered it to be

manifestly outside its competences. So, Anagnostakis filed a petition for the annulment

of the contested decision, but the General Court of European Union held that the

Commission had not committed any error. In the end, the Court of Justice of European

Union referred to the principle of conferral, in particular because according to numbers 1

and 2 of article 5 of TEU the Union must act only within the limits of the competences

that the Member States have conferred upon it in the Treaties, just as it states the fact that

the Union's institutions are also subject to the same limits by virtue of article 13(2) TEU.

Therefore, it considers that only when a competence is conferred by the Treaties the

European Commission may propose the adoption of a legal act of the Union. In short, it

concludes that the General Court did not commit an error of law in considering that the

subject-matter of the proposal at issue does not provide a basis for a legislative initiative

on the part of the Commission. Consequently, the Court dismisses the appeal in its

entirety.

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7. CONCLUSION

In doing this work I came to the conclusion that the principle of conferral was and it

is quite important in the context of the European Union. Over the years this thematic has

been undergoing some changes. However, the conclusion is that this is a matter of great

importance in all Democratic States under the rule of law.

In fact, this principle is a fundamental principle of the European Union that

delineates the competences between the Union and the Member States. It tells us that

the Union only can act within the limits of the competences conferred in the Treaties by

the Member States. Actually, the European Union does not have its own powers by

nature, so the extension of these competences must always result from the powers of the

Member States. This means that this principle inhibits the Union from determining its

own competences, in a way to prevent usurpation of powers and citizens’ rights in the

Member States. Therefore, as a way of delimiting such powers, the competences can be

grouped into three categories: exclusive competences, shared competences and

supporting competences.

Nevertheless, according to number 1 of article 5 of the TEU, all of those competences

are interconnected with other principles such as principle of subsidiarity and principle of

proportionality, since they constitute a kind of filter between the Union’s attribution and

the possibility of exercising the competence, because, as mentioned before, the Union

can only exercise a certain competence after passing through the “control” of the

principle of conferral.
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8. BIBLIOGRAPHY AND WEBGRAPHY

- Borchardt, Klaus-Dieter, The ABC of EU law, Publications Office of the European

Union, 2018

- Duarte, Maria Luísa, União Europeia – Estática e Dinâmica da Ordem Jurídica

Eurocomunitária Vol.I, Almedina, 2020

- Guerra Martins, Ana, Manual de Direito da União Europeia, 2ª ed., Almedina,

2017 - Judgment of the Court (Grand Chamber) of 12 September 2017, Case C-

589/15 P - Kaczorowska, Alina, European Union Law, Routledge-Cavendish, 2009 -

Rosas A., Armati L., EU constitutional law: an introduction, 3 ed., Hart Publishing

https://www.lexisnexis.co.uk/legal/guidance/eu-internal-competence

http://bdjur.almedina.net/item.php?field=node_id&value=192417

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:ai0020

https://eur-lex.europa.eu/summary/glossary/community_powers.html

https://eur-lex.europa.eu/summary/glossary/conferral.html

https://eur-lex.europa.eu/summary/glossary/competences.html

https://eurocid.mne.gov.pt/artigos/complementaridade-com-outros-principios

http://www.ipri.pt/images/publicacoes/revista_ri/pdf/r1/RI01_Artg08_AGS.pdf

https://warehouse.budh.nl/system/assets/uploads/001/129/136/ea44d9bc7c58656e7998d

ba89416d8774e776297/9789462369283_inkijkexemplaar_original.pdf
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