The Question of Competence in the European Union 1st Edition by Loic Azoulai ISBN 978-0198705222 0198705220

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ISBN 10:  0198705220

ISBN 13: 978-0198705222

Author: Loic Azoulai

The classic debate surrounding the prolific role of the European Union in defining spheres of competence and power relationships has long divided scholarly opinion. However, in recent years, the long-standing acquiescence to the broad powers of the Union has given way to the emerging perception of a competence problem in Europe. For a long period it was taken for granted that the European Community could act whenever its action was justified on the basis of the widely interpreted objectives of the Treaties. However this context has since changed. There is a widespread perception of a competence problem in Europe and the overabundance of provisions limiting the Union’s competences is one of the most obvious marks left by the Lisbon Treaty.

This book discusses the extent to which the parameters of power throughout the Union and its Member States have been recast by the recent implementation of the Lisbon Treaty and doctrines developed by the European Court of Justice. Comprised of contributions from a vast array of leading practitioners and academics in the field of EU Law, this volume assesses the debate surrounding the political identity of the European Union, and further illustrates the relevance of the Federal theory of sharing competences for the development of EU Law. Finally, the question of new potential limits to Union’s competence is addressed. If anything, this broad reflection on the notion of competence in the EU law context is a way of opening up the question of the nature and contours of the political identity of the European Union.

Table of contents: 

Introduction: The Question of Competence

Loïc Azoulai

I. The Structure of the European Legal Argument and the Competence Problem

II. The European Union as a Federal Order of Competences?

III. Competence and Membership

I. THE FEDERAL MODEL

1. The Allocation of Competences in a Federation-A General Introduction

Olivier Beaud

Introduction

I. The Conventional Conception of the Allocation of Competences: a Technical and State-centred Conception

II. Another Way of Looking at the Allocation of Competences in a Federation

Concluding Remark

2. Theoretical Deflation: The EU Order of Competences and Power-conferring Norms Theory

Guillaume Tusseau

I. A Metalinguistic Analysis of the Expression “The EU as a Federal Order of Competences’

II. A New Methodological Start

III. A Theory of Power-conferring Norms

IV. Identifying Types of Power-conferring Norms in the EU Legal Order

V. Identifying Types of Relationships between Power-conferring Norms in the EU Legal Order

Concluding Remarks

II. THE ALLOCATION OF COMPETENCES IN EU PRACTICE

3. EU External Relations: Unity and Conferral of Powers

Marise Cremona

Introduction

I. An Evolution in Thinking about EU External Competence

II. Give and Take in EU Practice

III. Unity and the Scope of Application of EU Law

IV. Internal and External Policies and the Union Interest Concluding Remarks

4. The Allocation of Economic Policy Competences in the European Union

Roland Bieber

Introduction

I. General Economic Policy: an Allocation of Competences sui generis

II. Monetary Policy: an Exclusive albeit Divided Competence Conclusion

5. Legislative and Executive Competences in Competition Law

Giorgio Monti

Introduction

I. The Enforcement of Competition Law in the EU

II. Legislative Competence

III. Executive Competence

IV. National Reactions

Conclusion

6. The EU as a Federal Order of Competences and the Private Law Hans-W. Micklitz

Prologue or Why Private Law

I. European Regulatory Private Law and Traditional National Private Law: some Clarifications

II. Scope of Competence in Private Law: from Market Bound to Justice Bound?

III. Limits of Competence: the Uncoupling of European Private Law from National Private Law and Possible Counter-reactions

IV. Intensity: the Relationship with Task and Function Concluding Remarks

Contents

III. THE EUROPEAN COURT OF JUSTICE AND THE QUESTION OF COMPETENCE

7. ECJ Doctrines on Competences

Christiaan Timmermans

Introductory Remark and Conclusions

I. Which Approaches?

II. What about Pre-emption?

III. And what about the Lisbon Treaty?

Final Remark

8. EU Law and Retained Powers of Member States

Lena Boucon

Introduction

I. A Specific Legal Framework

II. Implications

Conclusion

9. The Protection of Fundamental Rights and the Allocation of Competences in the EU: A Clash of Constitutional Logics

Edouard Dubout

Introduction

I. The Protection of Fundamental Rights and the Definition of the Union’s Competence

II. The Protection of Fundamental Rights and the Exercise of National Competences

Conclusion

IV. POLITICAL AND LEGAL LIMITS TO EU COMPETENCES

10. Limits to the Union’s ‘Internal Market’ Competence(s):

Constitutional Comparisons

Robert Schütze

Introduction

I. The ‘Internal Market Competence in the United States

II. The Internal Market Competence(s) of the European Union

III. Comparisons and Conclusions

11. Subsidiarity as a Procedural Safeguard of Federalism

Xavier Groussot and Sanja Bogojević

Introduction

I. Political Competence Test in the Post-Lisbon Era

II. Impact Assessments as a Competence Test

III. Subsidiarity and Adjudicative Federalism

IV. Federal Proportionality and Process Federalism Conclusion: One Vision of Federal Safeguards?

12. The Respect for National Constitutional Identity in the Furopean Legal Space: An Approach to Federalism as Constitutionalism

François-Xavier Millet

Introduction

I. From ‘Who Should Hold a Competence?’ to ‘How to Exercise a Competence?’

II. A New Kind of Federalism in the European Union

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