Exclusive, Shared, and Supporting Competences: The Division of Powers Between the EU and Member States

Exclusive, Shared, and Supporting Competences: The Division of Powers Between the EU and Member States

Introduction

The European Union is neither a federal state with general legislative authority nor a conventional international organisation whose powers are confined to coordinating the conduct of sovereign governments. It is a distinct legal order in which the Member States have conferred defined powers upon common institutions while retaining the competences that the Treaties have not attributed to the Union.

The constitutional foundation of this arrangement is the principle of conferral. Under Article 5 of the Treaty on European Union (TEU), the Union may act only within the limits of the competences conferred upon it by the Member States in the Treaties. Competences not conferred upon the Union remain with the Member States. The Union therefore has no general residual legislative power: its authority must be traced to a specific Treaty provision.

The Treaties organise these powers into three principal categories: exclusive competences, shared competences, and supporting, coordinating, or supplementing competences. This classification, established principally by Articles 2–6 of the Treaty on the Functioning of the European Union (TFEU), determines the legal relationship between Union action and national authority in different policy fields.

The distinction is fundamental. In areas of exclusive competence, the Union alone may legislate and adopt legally binding acts, while Member States may do so only when empowered by the Union or when implementing Union acts. In areas of shared competence, both the Union and Member States may legislate, although the exercise of Union competence may limit the scope for independent national action. In supporting, coordinating, or supplementing fields, the Union may assist or complement national policies but cannot generally replace Member State competence or harmonise national laws where the Treaties prohibit harmonisation.

These categories are not merely academic classifications. They affect the legal basis of legislation, the scope of national regulatory freedom, the procedures followed by EU institutions, the application of subsidiarity, and the judicial review of Union measures. They also explain why the same policy subject may involve different forms of authority depending on the particular Treaty provision concerned.

A proper understanding of the division of competences is therefore essential to understanding the constitutional structure of the EU. It reveals how European integration can produce common rules in certain areas while preserving national autonomy in others, and why the boundaries between Union and Member State authority remain a central question of EU law.

1. The Constitutional Framework: Articles 2–6 TFEU

The principal legal framework for the division of competences is found in Title I of Part One of the TFEU, entitled Categories and Areas of Union Competence. Articles 2–6 establish the categories of competence and explain their legal consequences. The provisions must be read together: Article 2 defines how each category operates, while Articles 3, 4, and 6 identify the principal areas in which the categories apply. Article 5 deals separately with the coordination of economic and employment policies.

This structure was clarified by the Treaty of Lisbon. Before Lisbon, the Treaties contained provisions conferring powers in particular policy fields, but the overall classification of competences was less systematically expressed. Lisbon made the constitutional distinction more visible by placing the categories in a dedicated Treaty title.

The classification does not mean that each policy subject is governed by one simple, indivisible allocation of authority. A broad policy field may contain several distinct Treaty competences. Public health, for example, includes both shared competence and supporting competence, depending on the specific action contemplated. Fisheries policy is also divided: conservation of marine biological resources under the common fisheries policy is exclusive, while other aspects of fisheries may fall within shared competence.

Consequently, the legal classification must be made by reference to the specific Treaty provision and the substance of the proposed measure, not merely by identifying the general policy area.

The principal provisions are set out in the consolidated Treaty on the Functioning of the European Union, particularly Articles 2–6. EUR-Lex+1

2. Exclusive Competence: Areas Reserved to the European Union

2.1 Meaning and legal consequences

Article 2(1) TFEU defines the consequences of exclusive competence. Where the Treaties confer exclusive competence upon the Union in a specific area, only the Union may legislate and adopt legally binding acts. Member States may act independently only where the Union empowers them to do so or where action is necessary to implement Union acts.

Exclusive competence therefore represents the strongest form of centralisation within the EU system of allocated powers. It prevents Member States from adopting independent legislation that would exercise the same regulatory authority in an area reserved to the Union.

However, exclusive competence does not mean that national authorities become irrelevant. Member States continue to administer customs systems, enforce competition rules within their responsibilities, implement EU regulations, collect relevant information, and cooperate with Union institutions. Their role is shaped by the applicable EU legislation and the powers conferred upon them.

The distinction is between independent legislative authority and the implementation or administration of Union rules. A Member State may carry out extensive regulatory and enforcement functions without possessing an autonomous competence to determine the underlying European policy.

2.2 The five areas of exclusive competence under Article 3(1) TFEU

Article 3(1) TFEU identifies five principal areas of exclusive Union competence.

The customs union

The customs union is one of the foundational achievements of European integration. It requires the elimination of customs duties and equivalent charges between Member States and the application of a common customs tariff to goods entering the Union from third countries.

A customs union requires a common external framework. If individual Member States could independently determine customs duties on imports from non-EU countries, the common external tariff would lose its coherence. Goods could enter through the Member State applying the lowest tariff and then circulate within the Union, undermining the common system.

The Union therefore possesses exclusive competence over the customs union. National customs administrations nevertheless remain essential to its operation, applying the Union Customs Code and enforcing customs legislation at external borders.

The legal foundations include Articles 28–32 TFEU and the Union’s customs legislation.

The competition rules necessary for the functioning of the internal market

The Union has exclusive competence to establish the competition rules necessary for the functioning of the internal market.

This competence is intended to prevent private economic conduct and certain forms of state intervention from undermining the conditions of competition within the Union. It supports the prohibition of anti-competitive agreements, the control of abuses of dominant positions, and the regulation of state aid.

The relevant Treaty provisions include Articles 101 and 102 TFEU on anti-competitive agreements and abuse of dominant positions, and Articles 107–109 TFEU on state aid.

The scope of this exclusive competence should be described carefully. Article 3(1)(b) does not transform every aspect of national economic regulation into an exclusive EU matter. It concerns the establishment of the competition rules necessary for the functioning of the internal market. National authorities retain responsibilities in other areas of economic policy, subject to applicable EU law.

Monetary policy for Member States whose currency is the euro

The Union has exclusive competence over monetary policy for Member States whose currency is the euro.

This allocation reflects the institutional structure of Economic and Monetary Union. The euro-area states share a single currency and a common monetary policy conducted within the Eurosystem, with the European Central Bank (ECB) at its centre.

The ECB’s primary objective is to maintain price stability. The national central banks of euro-area states participate in the Eurosystem, but monetary policy for the euro area is not determined independently by each national government.

The exclusive competence is limited to monetary policy for euro-area Member States. It does not mean that the Union possesses exclusive competence over all economic and fiscal policy. Member States retain important responsibilities concerning taxation, public expenditure, national budgets, and broader economic policy, although these are subject to Treaty-based coordination and constraints.

The relevant provisions include Articles 127–133 TFEU and the Protocol on the Statute of the European System of Central Banks and of the European Central Bank.

The conservation of marine biological resources under the common fisheries policy

The Union has exclusive competence over the conservation of marine biological resources under the common fisheries policy.

This allocation recognises that fish stocks are not confined to national territorial boundaries and that independent national conservation rules could undermine the sustainability of shared marine resources. Common rules on fishing opportunities, conservation measures, and the management of relevant stocks are therefore adopted at Union level.

The exclusivity is deliberately limited to the conservation of marine biological resources under the common fisheries policy. Other aspects of fisheries policy may fall within shared competence. The distinction is important because the Treaty does not classify the entire fisheries sector as exclusively European.

The principal Treaty provisions are Articles 38–44 TFEU, together with the legislation establishing the common fisheries policy.

The common commercial policy

The common commercial policy governs the Union’s external trade relations. It includes the framework for trade with non-EU countries, such as tariffs, trade agreements, export policy, and certain trade-defence measures.

A common commercial policy is necessary to prevent Member States from pursuing inconsistent external trade strategies that could undermine the Union’s position in international commerce.

Article 207 TFEU provides the principal legal framework. It covers trade in goods and services, the commercial aspects of intellectual property, foreign direct investment, and other matters identified by the Treaty.

The Union negotiates and concludes trade agreements within the limits and procedures established by the Treaties. The Commission generally conducts negotiations under the authority and directives of the Council, while the European Parliament has the role assigned to it by Article 207 and Article 218 TFEU.

Member States remain involved through the Council and other Treaty procedures, but they cannot independently conduct a national commercial policy in matters falling within the Union’s exclusive competence.

2.3 Exclusive competence to conclude international agreements

Article 3(2) TFEU provides that the Union also has exclusive competence to conclude an international agreement in three circumstances:

1. Where its conclusion is provided for in a legislative act of the Union.
2. Where its conclusion is necessary to enable the Union to exercise its internal competence.
3. Where the conclusion of the agreement may affect common Union rules or alter their scope.

This provision is particularly important because the Union’s external powers are not limited to the areas expressly listed in Article 3(1). The Union may acquire exclusive external competence where the conditions of Article 3(2) are satisfied.

The third situation reflects the Court of Justice’s case law on the relationship between internal EU rules and external agreements. In Commission v Council (ERTA), Case 22/70, the Court established that the adoption of common Union rules may affect the external powers of Member States where international commitments could interfere with those rules or alter their scope.

The doctrine is now reflected in the Treaty text. It prevents Member States from entering international commitments that could compromise the uniform application or development of EU law in areas already governed by common rules.

The Court’s Opinion 1/03, concerning the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, further developed the analysis of exclusive external competence. The Court examined whether international commitments could affect common EU rules, taking account of their scope, nature, and development.

These principles are central to understanding the Union’s international legal personality. The Union may possess external authority not only because the Treaties expressly confer it, but also because the effective exercise of internal competence requires a corresponding external capacity.

Official texts: Article 3 TFEU, Case 22/70, Commission v Council (ERTA), and Opinion 1/03. EUR-Lex+1

3. Shared Competence: A Concurrent Allocation of Authority

3.1 The legal meaning of shared competence

Shared competence is the most extensive category of Union competence in terms of the number of policy fields it covers. It reflects the fact that many objectives of European integration require both common European rules and continuing national legislative authority.

Article 2(2) TFEU provides that, where the Treaties confer shared competence, both the Union and the Member States may legislate and adopt legally binding acts. Member States exercise their competence to the extent that the Union has not exercised its own. They may exercise it again to the extent that the Union has decided to cease exercising its competence.

This arrangement is sometimes described as a system of pre-emption. Once the Union exercises its competence in a particular area, the Member States’ ability to act independently may be restricted to the extent that the Union has regulated the matter.

However, shared competence does not mean that the adoption of any EU measure automatically removes all national authority over the entire policy field. The scope of the restriction depends on the subject matter and extent of the Union act.

Protocol No 25 on the Exercise of Shared Competence clarifies this point. It states that, when the Union has taken action in a particular area, the scope of the exercise of competence covers only the elements governed by the Union act and does not extend to the whole area.

This clarification is essential. A directive regulating one aspect of environmental protection does not necessarily remove national competence over every other environmental matter. The legal consequences must be assessed by examining the content and scope of the relevant Union legislation.

3.2 The principal areas of shared competence

Article 4 TFEU identifies the principal fields in which the Union shares competence with the Member States. These include the following.

The internal market

The internal market is one of the central fields of shared competence. Article 26 TFEU defines it as an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured.

The Union may adopt legislation to remove barriers to trade, establish common standards, and facilitate cross-border economic activity. Member States retain regulatory authority over matters not fully governed by EU law, but national rules must comply with applicable Treaty obligations and harmonising legislation.

Social policy

The Union and Member States share competence in the aspects of social policy defined by the Treaties. Article 153 TFEU provides for Union action in areas including working conditions, social security and social protection of workers, protection of workers where employment contracts are terminated, information and consultation, and the integration of persons excluded from the labour market.

However, the scope of Union competence is not unlimited. Article 153(5) excludes pay, the right of association, the right to strike, and the right to impose lock-outs from the relevant legislative powers conferred by that article.

This illustrates why the exact Treaty provision matters. The existence of shared competence in social policy does not give the Union general authority to regulate every aspect of employment relations.

Economic, social, and territorial cohesion

The Union shares competence with Member States in promoting economic, social, and territorial cohesion.

This competence supports the reduction of disparities between regions and the promotion of balanced development. It provides the legal foundation for important elements of EU regional policy, including structural and investment funding.

Member States continue to determine many aspects of their domestic regional and economic development policies, while the Union provides common objectives, funding frameworks, and coordination mechanisms.

Agriculture and fisheries, excluding the conservation of marine biological resources

Agriculture and fisheries are shared competences, subject to the specific exclusive competence over the conservation of marine biological resources under Article 3(1)(d).

The common agricultural policy provides a particularly developed example of shared competence exercised through extensive Union legislation, financial mechanisms, market organisation, and national implementation.

Member States retain responsibilities in agricultural administration, rural development, land management, and related fields, but must operate within the applicable EU framework.

Environment

Environmental protection is a major field of shared competence. The Union may adopt common standards concerning pollution, climate-related measures, waste management, nature conservation, and environmental assessment.

The transboundary nature of many environmental problems often provides a strong rationale for European action. Nevertheless, Member States continue to possess important regulatory and administrative responsibilities, including the adoption of measures that go beyond Union minimum requirements where EU law permits.

Article 193 TFEU expressly allows Member States, under specified conditions, to maintain or introduce more stringent protective measures after the adoption of certain Union environmental measures, provided that they remain compatible with the Treaties and are notified to the Commission.

Consumer protection

The Union and Member States share competence in consumer protection. Article 169 TFEU provides the framework for Union action to protect consumer health, safety, and economic interests and to promote consumers’ rights to information, education, and organisation.

Union legislation has established common rules in areas such as consumer contracts, product safety, unfair commercial practices, and consumer remedies. National authorities retain enforcement responsibilities and may regulate matters not fully harmonised, subject to the applicable EU framework.

Transport

Transport is a shared competence, covering significant aspects of road, rail, inland waterway, sea, and air transport policy. The Union may adopt common rules to facilitate cross-border movement, improve safety, establish market conditions, and develop trans-European transport networks.

National authorities remain responsible for important aspects of infrastructure, licensing, enforcement, and public transport, within the limits of EU legislation.

Trans-European networks

The Union and Member States share competence in developing trans-European networks in transport, telecommunications, and energy infrastructure. The Union may establish guidelines, identify projects of common interest, and support cross-border connections.

The implementation of infrastructure projects generally requires extensive cooperation with national and regional authorities, reflecting the fact that networks often cross several jurisdictions.

Energy

Energy is a shared competence under Article 4 TFEU. Article 194 TFEU identifies objectives including the functioning of the energy market, security of energy supply, energy efficiency, energy saving, the development of renewable energy, and the interconnection of energy networks.

The Treaty also preserves important national responsibilities. Under Article 194(2), Member States retain the right to determine the conditions for exploiting their energy resources, their choice between different energy sources, and the general structure of their energy supply, subject to the other relevant Treaty provisions.

This demonstrates that shared competence can combine extensive Union regulatory powers with specific areas of national policy autonomy.

The area of freedom, security and justice

The Union and Member States share competence in the area of freedom, security and justice. This includes aspects of border control, asylum, immigration, judicial cooperation in civil matters, judicial cooperation in criminal matters, and police cooperation.

The Treaty provisions are found principally in Title V of Part Three TFEU. The field is characterised by a combination of common rules and national institutional responsibilities. National courts, police forces, immigration authorities, and administrative bodies remain central to implementation.

Public health: common safety concerns

Article 4(2)(k) TFEU identifies common safety concerns in public health matters as a field of shared competence. This is narrower than a general Union competence over national health systems.

Article 168 TFEU provides the substantive framework for Union action in public health. It allows the Union to address cross-border health threats, establish high standards of quality and safety for certain products, and support cooperation between Member States.

At the same time, Article 168(7) preserves Member State responsibility for defining health policy and organising and delivering health services and medical care. This includes the management of health services, the allocation of resources, and the provision of medical treatment.

Research, technological development, and space

Research, technological development, and space are shared competences, but they operate under a special Treaty arrangement. Article 4(3) TFEU provides that the exercise of Union competence does not prevent Member States from exercising their own competence.

The Union may establish research programmes, provide funding, and coordinate scientific cooperation. National governments remain free to develop and finance their own research policies.

This is a distinctive form of shared competence because Union action does not operate through the same restrictive pre-emption model found in many other shared fields.

Development cooperation and humanitarian aid

Article 4(4) TFEU also establishes a special form of shared competence in development cooperation and humanitarian aid. The exercise of Union competence does not prevent Member States from exercising their own competence.

The Union and Member States may therefore maintain parallel programmes, contribute to international development, and provide humanitarian assistance. The Treaty seeks to ensure coordination and consistency without creating an exclusive European monopoly over these activities.

The complete list and legal qualifications appear in Article 4 TFEU. EUR-Lex+1

4. Supporting, Coordinating, and Supplementing Competence

4.1 The meaning of supporting competence

Article 2(5) TFEU establishes a third category of Union competence. In certain fields, the Union may carry out actions to support, coordinate, or supplement the actions of Member States without superseding their competence.

Article 6 TFEU identifies the principal areas in which this form of competence applies:

• Protection and improvement of human health.
• Industry.
• Culture.
• Tourism.
• Education, vocational training, youth, and sport.
• Civil protection.
• Administrative cooperation.

The central characteristic of this category is that the Union does not replace national legislative authority. Member States retain primary responsibility for the policy field, while the Union may provide financial assistance, promote cooperation, exchange information, encourage common objectives, and facilitate the development of compatible approaches.

Article 2(5) also establishes an important limitation: legally binding Union acts adopted under the Treaty provisions governing these fields must not entail harmonisation of Member States’ laws or regulations.

This restriction distinguishes supporting competence from shared competence. In a shared field, the Union may adopt harmonising legislation where the relevant Treaty legal basis permits it. In a supporting field, the Union may act to complement national policies, but it cannot use the supporting competence as a general authority to replace national legislation with uniform European rules.

The prohibition on harmonisation does not mean that every Union act in these fields must be legally non-binding. The Treaties permit legally binding measures in certain circumstances, provided that they do not entail harmonisation of national laws or regulations. Nor does it prevent the Union from providing substantial financial support or organising programmes that influence national policy development.

4.2 Education, vocational training, youth, and sport

Education is a particularly clear example of supporting competence.

Article 165 TFEU provides that the Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, supporting and supplementing their action. It must fully respect the responsibility of Member States for the content of teaching and the organisation of education systems, as well as their cultural and linguistic diversity.

The Union may therefore support student and staff mobility, promote cooperation between educational institutions, facilitate recognition of qualifications, and finance programmes that encourage cross-border learning.

The Erasmus+ programme illustrates this form of competence. It provides opportunities for mobility and cooperation in education, training, youth, and sport, but it does not give the Union general authority to determine national curricula, school structures, or the organisation of national education systems.

The Treaty preserves the authority of Member States over the fundamental organisation and content of education while allowing European cooperation to develop around it.

4.3 Culture

Under Article 167 TFEU, the Union contributes to the flowering of the cultures of Member States while respecting their national and regional diversity and bringing common cultural heritage to the fore.

Its action may encourage cooperation between Member States, support artistic and literary creation, promote cultural heritage, and assist the dissemination of European culture.

The Union does not possess a general competence to impose a uniform cultural policy or replace national cultural institutions. The cultural identities, languages, traditions, and institutional arrangements of Member States remain central to this field.

European programmes may nevertheless create opportunities for cooperation, cross-border cultural projects, translation, artistic mobility, and the protection of shared heritage.

4.4 Industry

Article 173 TFEU allows the Union to support the conditions necessary for the competitiveness of Union industry. Its activities may include encouraging an environment favourable to initiative and enterprise, promoting cooperation between businesses, and supporting the better exploitation of industrial potential through innovation and research.

The Treaty expressly excludes harmonisation of national laws and regulations under the relevant industrial policy provisions.

This means that the Union can support industrial development through funding, coordination, research programmes, and initiatives designed to improve competitiveness, but it cannot derive a general power to harmonise national industrial regulation from Article 173 alone.

4.5 Tourism

Article 195 TFEU provides a supporting role for the Union in tourism. European action may encourage the creation of a favourable environment for tourism enterprises and promote cooperation between Member States, particularly through the exchange of good practices and the development of common approaches to challenges affecting the sector.

National authorities retain primary responsibility for tourism policy, licensing, infrastructure, cultural promotion, and the organisation of tourism services, subject to other applicable areas of EU law.

4.6 Civil protection

Article 196 TFEU permits the Union to support and complement Member State action in preventing natural or man-made disasters, preparing for them, and responding to them.

The Union may encourage cooperation between national civil protection services, facilitate operational coordination, support training and preparedness, and organise assistance where a disaster exceeds the capacity of an individual state.

The Union Civil Protection Mechanism is an important example. It facilitates cooperation and mutual assistance, including the mobilisation of resources when a Member State or participating country requests support.

The mechanism does not replace national emergency services or transfer general responsibility for civil protection to the Union. National authorities remain responsible for preparedness and response within their territories.

4.7 Administrative cooperation

Article 197 TFEU permits the Union to support Member States in improving their capacity to implement Union law. It may facilitate exchanges of information and officials, provide training, and support administrative cooperation.

This competence is important because EU legislation frequently requires national administrations to apply common standards. Cooperation between administrative authorities can improve consistency, reduce implementation difficulties, and facilitate the exchange of expertise.

However, Article 197 does not create a general power to harmonise national administrative law. The Union’s role remains one of support, coordination, and assistance within the limits of the Treaty.

4.8 Public health as a field of overlapping competence

Public health deserves particular attention because it illustrates how one broad policy subject may fall within more than one competence category.

Article 4(2)(k) TFEU identifies common safety concerns in public health matters as shared competence. By contrast, Article 6(a) TFEU identifies the protection and improvement of human health as a supporting competence.

The distinction is developed in Article 168 TFEU. The Union may adopt certain measures concerning serious cross-border health threats, high standards of quality and safety for specified products, and other matters expressly covered by the Treaty. It may also encourage cooperation and support national health policies.

However, Article 168(7) preserves Member State responsibility for defining health policy and organising and delivering health services and medical care.

Thus, the EU may regulate aspects of medicine safety, coordinate responses to cross-border health threats, support disease prevention, and promote cooperation between health authorities, while national governments retain responsibility for the organisation and financing of their health systems.

This is not a contradiction. It is an example of differentiated competence within a broad policy field. The legal authority for each measure must be identified by examining its actual purpose and content.

The relevant Treaty provisions are Articles 165–168, 173, and 195–197 TFEU. The European Commission’s overview of areas of EU action provides a concise institutional explanation of the categories. European Commission+1

5. Special Categories of Competence and Coordination

The three principal categories do not exhaust the constitutional arrangements established by the Treaties. Articles 5 and 2(3)–(4) TFEU, together with provisions of the TEU, establish additional forms of Union authority that do not fit neatly into the ordinary exclusive, shared, and supporting classification.

5.1 Coordination of economic policies

Article 2(3) TFEU provides that Member States shall coordinate their economic and employment policies within the arrangements determined by the Treaties, and that the Union has competence to provide those arrangements.

Article 5 TFEU develops this framework. Member States coordinate their economic policies within the Union, with the Council adopting measures and, in particular, broad economic policy guidelines. The Union also takes measures to ensure coordination of national employment policies, including through the definition of guidelines.

This is not the same as giving the Union exclusive competence over national economic or employment policy. Member States retain significant authority over taxation, public expenditure, labour-market institutions, and national economic choices, subject to the Treaty obligations and coordination mechanisms.

Economic and Monetary Union illustrates the differentiated nature of this system. Euro-area Member States share a common monetary policy, which is an exclusive Union competence, but their fiscal and broader economic policies remain substantially national, operating within a framework of coordination and common rules.

The Stability and Growth Pact and the European Semester are examples of mechanisms through which economic policies are monitored and coordinated.

5.2 Coordination of social policies

Article 5(3) TFEU provides that the Union may take initiatives to ensure coordination of Member States’ social policies.

This provision does not establish a general power to harmonise national social-security systems. Instead, it enables the Union to promote cooperation and coordination in accordance with the relevant Treaty framework.

The distinction is important because social policy contains both shared and nationally retained elements. The Union may legislate in the fields specified by Article 153 TFEU, while other aspects remain subject to national responsibility or more limited forms of European coordination.

5.3 The Common Foreign and Security Policy

Article 2(4) TFEU provides that the Union has competence, in accordance with the TEU, to define and implement a Common Foreign and Security Policy (CFSP), including the progressive framing of a common defence policy.

The CFSP has a distinct institutional and procedural character. It is governed principally by Title V of the TEU, particularly Articles 21–46. The European Council and the Council play central roles, and decision-making is generally based on unanimity, subject to the exceptions provided by the Treaties.

The CFSP should not simply be classified as an ordinary supporting competence. It is a special Treaty-based field with its own legal framework, institutional balance, and decision-making rules. Nor should it be treated as a conventional shared competence under Article 4 TFEU.

This special character reflects the sensitivity of foreign policy and national security, areas in which Member States have retained a distinctive role in the Union’s constitutional structure.

5.4 The significance of differentiated competence

These special arrangements demonstrate that the division of powers is more complex than a simple list of policy areas.

The Treaties establish different forms of authority according to the nature of the subject matter. In some areas, the Union adopts binding legislation. In others, it coordinates national policies, provides financial support, or facilitates cooperation. In foreign and security policy, it operates under a distinct institutional framework.

The classification must therefore begin with the specific Treaty provision, rather than an assumption that all European action belongs to one of the three principal categories in an identical manner.

6. How the Division of Competences Works in Practice

6.1 The legal basis of Union action

The Union cannot adopt legislation simply because a policy objective is desirable or because a problem affects several Member States. Every binding Union act must have a legal basis in the Treaties.

The choice of legal basis is a constitutional question. It determines the extent of the Union’s competence, the legislative procedure, the role of the institutions, and sometimes the voting rules applicable in the Council.

The Court of Justice has consistently held that the choice of legal basis must rest on objective factors amenable to judicial review, particularly the aim and content of the measure. A legislative act cannot be assigned a legal basis merely because that basis would make adoption politically easier or produce a preferred institutional procedure.

Where a measure has more than one objective or component, the institutions must examine whether those elements are inseparably linked and whether one is predominant. In certain circumstances, more than one legal basis may be required. However, a dual legal basis cannot be used where the procedures attached to the relevant Treaty provisions are incompatible.

This approach protects the constitutional distribution of powers and prevents institutions from circumventing Treaty procedures through an artificial choice of legal basis.

6.2 The principle of conferral and the burden of justification

The principle of conferral means that the Union must identify the Treaty authority supporting its action. It cannot rely on the general objectives of European integration as an independent source of legislative power.

Article 352 TFEU, often called the flexibility clause, provides a limited mechanism for action where the Treaties have not provided the necessary specific powers to attain one of their objectives. However, it is not a general authorisation to expand Union competence. It has strict procedural and substantive conditions and cannot be used to circumvent express Treaty limits.

The provision requires unanimity in the Council, a Commission proposal, and the consent of the European Parliament. It also requires that the proposed action be necessary within the framework of the policies defined by the Treaties to attain one of the Treaty objectives.

The flexibility clause does not permit the Union to use secondary legislation to amend the Treaties or create new areas of competence beyond the constitutional framework agreed by the Member States.

6.3 The relationship with subsidiarity

The category of competence determines whether subsidiarity applies.

In exclusive areas, the Union does not need to establish that Member States would be unable to achieve the objective independently. The Treaties have already assigned the relevant competence exclusively to the Union.

In shared areas, subsidiarity applies. The Union must establish that the objectives of the proposed action cannot be sufficiently achieved by Member States and can be better achieved at Union level because of the scale or effects of the proposed action.

In supporting, coordinating, and supplementing areas, the Union’s authority is already limited by the nature of the competence. It may support national action, but it cannot use those powers to supersede Member State competence or harmonise national laws where the Treaties prohibit it.

Subsidiarity therefore cannot be understood independently of the competence classification. The question of whether the Union should act depends first on what type of authority the Treaties have conferred.

6.4 Proportionality applies across the categories

Proportionality is not confined to shared competence. It governs the exercise of Union competences more generally.

Even in an area of exclusive competence, the Union must ensure that the content and form of its action do not exceed what is necessary to achieve the objectives of the Treaties.

Similarly, in supporting fields, Union action must remain within the limits of the specific supporting power. The fact that the Union is permitted to finance a programme or coordinate national policies does not authorise it to impose unrelated or excessive obligations.

The category of competence therefore establishes the nature and limits of the Union’s authority, while proportionality controls the manner in which that authority is exercised.

7. The Exercise of Shared Competence and the Principle of Pre-emption

7.1 What happens when the Union legislates?

One of the most important consequences of shared competence is that the exercise of Union authority may restrict the ability of Member States to adopt independent national rules in the same field.

This is often described as pre-emption. The term reflects the operation of Article 2(2) TFEU: Member States may exercise their competence only to the extent that the Union has not exercised its own, and they may exercise it again to the extent that the Union has decided to cease exercising its competence.

The extent of pre-emption depends on the measure adopted. It may be comprehensive where the Union has established a fully harmonised framework, or more limited where the measure regulates only particular aspects of the relevant subject.

For example, a directive may harmonise specific requirements concerning consumer information while leaving Member States discretion over other aspects of consumer law. National legislation remains possible in the areas not governed by the directive, subject to the requirements of EU law.

The analysis must therefore be precise. It is not sufficient to say that the Union has legislated in the field of consumer protection. One must identify what the legislation regulates, whether it establishes minimum or maximum harmonisation, what discretion it leaves to Member States, and whether any national measure would conflict with the Union rules.

7.2 Protocol No 25 and the scope of Union action

Protocol No 25 on the Exercise of Shared Competence clarifies the geographical and substantive reach of pre-emption. It provides that, when the Union has taken action in a particular area, the scope of that exercise of competence covers only the elements governed by the Union act and does not extend to the whole area.

This is an important safeguard against treating shared competence as though it automatically becomes exclusive whenever the Union adopts a legislative measure.

The Protocol requires attention to the actual content of the Union act. A measure regulating certain product-safety requirements does not necessarily remove national authority over every aspect of product regulation. A directive establishing common environmental standards does not automatically prevent Member States from legislating on environmental matters outside its scope.

The precise extent of national regulatory freedom must be determined by interpreting the relevant Union legislation and the Treaty provisions on which it is based.

7.3 Minimum and maximum harmonisation

The distinction between minimum and maximum harmonisation is particularly important in shared competence.

Under minimum harmonisation, the Union establishes a common level of protection or a set of minimum requirements, while Member States may generally adopt more stringent national rules, provided that they comply with the Treaties and the relevant legislation.

Under maximum harmonisation, the Union seeks to establish a more uniform regulatory framework, limiting the ability of Member States to maintain or introduce divergent rules within the harmonised field.

Neither form of harmonisation follows automatically from the category of shared competence. It depends on the relevant legal basis and the design of the legislative measure.

For example, Article 193 TFEU allows Member States, subject to specified conditions, to maintain or introduce more stringent protective measures following the adoption of certain Union environmental measures. By contrast, where EU legislation fully harmonises a particular area, national rules that depart from the harmonised standard may be incompatible with EU law unless the legislation itself provides for exceptions or derogations.

The distinction matters in practice because it determines how much regulatory discretion remains with national legislatures after Union legislation has been adopted.

7.4 When can Member States legislate again?

Article 2(2) TFEU expressly recognises that Member States may exercise their competence again to the extent that the Union has decided to cease exercising its competence.

This possibility reflects the continuing shared character of the competence. The Union’s action does not necessarily create an irreversible transfer of the underlying Treaty power.

However, the legal consequences of withdrawing or repealing Union legislation must be assessed carefully. The fact that an EU act has been repealed does not automatically mean that every national measure becomes permissible. Other Treaty provisions, remaining EU rules, and obligations arising from international agreements may continue to apply.

The return of national legislative authority is therefore subject to the wider legal framework.

8. National Competences and the Limits of Union Authority

8.1 Competences not conferred remain with the Member States

The constitutional starting point is Article 5(2) TEU. The Union may act only within the competences conferred upon it by the Member States in the Treaties. Competences not conferred upon the Union remain with the Member States.

This means that national authority is not merely a residual administrative function. It is an essential element of the constitutional structure of the Union.

Member States retain responsibility for many areas of public policy, including the organisation of national institutions, much of criminal law, taxation outside specific Union powers, national security, public administration, and the organisation of education and health systems, subject to the particular Treaty provisions and applicable EU obligations.

The boundaries are not always absolute. A policy field that remains principally national may still be affected by EU law where the Member States exercise their powers in a way that falls within the scope of the Treaties. For example, national taxation rules must comply with relevant Treaty provisions on free movement and non-discrimination, even though the Union does not possess a general competence to determine all national tax rates and structures.

The fact that a matter remains within national competence does not create an exemption from EU law whenever the exercise of that competence affects rights or obligations protected by the Treaties.

8.2 National security

Article 4(2) TEU provides that the Union shall respect the equality of Member States before the Treaties and their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It also states that national security remains the sole responsibility of each Member State.

This provision is constitutionally significant, but it should not be interpreted as removing all national-security-related matters from the scope of EU law. The precise legal question depends on the nature of the measure and the Treaty provisions involved.

For example, Member States retain responsibility for essential functions of the state and national security, but they must still respect applicable EU obligations when acting within the scope of Union law, unless a specific Treaty derogation or exception applies.

Article 346 TFEU also allows Member States to take certain measures they consider necessary to protect essential security interests connected with the production of or trade in arms, munitions, and war material, subject to the conditions and limits established by that provision.

8.3 The organisation of public services and national institutional choices

The Treaties recognise the importance of national institutional and administrative autonomy in several contexts.

Article 14 TFEU and Protocol No 26 on Services of General Interest acknowledge the role of services of general economic interest in promoting social and territorial cohesion. Protocol No 26 recognises the wide discretion of national, regional, and local authorities in providing, commissioning, and organising services of general economic interest, subject to the Treaties.

This does not exclude such services from EU law. Competition, state aid, internal market, and public procurement rules may apply, depending on the circumstances. Nevertheless, the Treaty framework recognises that public authorities retain significant discretion in determining how services of general interest should be organised.

The division of competences is therefore not simply a choice between European regulation and national sovereignty. It also accommodates national institutional diversity within the common legal framework.

9. Judicial Control of the Division of Competences

The division of powers would have limited legal significance without judicial mechanisms capable of ensuring that Union institutions act within the authority conferred upon them.

The Court of Justice of the European Union plays a central role in determining the legal basis of Union measures, interpreting the scope of Treaty competences, and reviewing whether the institutions have exceeded their powers.

9.1 Review of the legal basis

The choice of legal basis is subject to judicial review. The Court examines the aim and content of the measure and determines whether the Treaty provision relied upon is appropriate.

In Commission v Council, Case C-300/89, commonly known as the Titanium Dioxide case, the Court examined the legal basis of a directive concerning waste from the titanium dioxide industry. The case is important because it demonstrates that the choice of legal basis must be founded on objective factors and that institutional procedures cannot be selected arbitrarily.

Where a measure has multiple objectives or components, the Court examines whether one is predominant or whether several components are inseparably linked. The institutions cannot simply combine legal bases if the procedures attached to them are incompatible.

Official judgment: Case C-300/89, Commission v Council.

9.2 The doctrine of implied external powers

The Court’s judgment in Commission v Council (ERTA), Case 22/70, is one of the foundational authorities concerning the Union’s external competence.

The case concerned the negotiation of an international agreement relating to working conditions in road transport. The Court held, in substance, that the adoption of common Union rules could create external competence where international commitments might affect those rules or alter their scope.

The principle was significant because it demonstrated that the external authority of the Union could arise from the exercise of internal powers, even where the relevant Treaty provisions did not expressly state that the Union possessed exclusive external competence.

The doctrine is now reflected in Article 3(2) TFEU and forms an important part of the constitutional relationship between internal and external Union action.

9.3 The flexibility clause and constitutional limits

In Opinion 2/94, concerning the proposed accession of the European Community to the European Convention on Human Rights, the Court considered whether the Community possessed the necessary competence under the Treaty framework then in force.

The Court concluded that the Community lacked the power to accede to the Convention under the existing Treaty provisions. The objectives of the Community could not, by themselves, create a new competence, and the flexibility provision could not be used to effect a fundamental change to the constitutional structure of the Community.

The opinion is historically important because it illustrates the limits of implied and supplementary powers. The Union cannot transform its objectives into general legislative authority. Where a significant extension of competence is required, Treaty amendment by the Member States may be necessary.

Following the Lisbon Treaty, Article 6(2) TEU now expressly provides for the Union’s accession to the European Convention on Human Rights, subject to the conditions established by the Treaties. The Court’s earlier opinion nevertheless remains relevant to the constitutional principle that the Union’s powers must have a Treaty foundation.

Official text: Opinion 2/94.

9.4 Annulment and preliminary rulings

Article 263 TFEU provides for judicial review of Union acts intended to produce legal effects. A measure adopted without an appropriate legal basis, or in breach of the limits of the competence conferred by the Treaties, may be challenged through an action for annulment.

Article 267 TFEU provides a further route. A national court may refer a question concerning the validity or interpretation of an EU act to the Court of Justice. If the validity of the act is in doubt, the national court cannot itself declare the EU act invalid; the question must be referred to the Court of Justice in accordance with the principles established in Foto-Frost, Case 314/85.

These procedures ensure that the division of competences is not left solely to the political institutions. It is ultimately governed by the Treaties as interpreted by the Court.EUR-Lex+1

10. The Division of Competences as a Constitutional Balance

The classification of competences is often presented as a technical system, but it expresses a deeper constitutional compromise.

The Member States have agreed to exercise certain powers collectively through the Union because common action can achieve objectives that individual national governments cannot achieve as effectively. At the same time, they have retained authority over other areas and have limited the Union’s role in fields where national institutional, cultural, or political diversity remains particularly important.

Exclusive competence reflects areas in which the Treaties reserve legislative authority to the Union. Shared competence allows both levels of government to act, subject to the rules governing the exercise of Union powers and the scope of adopted legislation. Supporting competence allows the Union to contribute to common objectives without replacing national responsibility.

The categories are not rigid descriptions of entire sectors of public life. They are legal classifications that must be interpreted in the light of the specific Treaty provisions and the substance of each proposed measure.

This explains why the same broad subject can contain several different forms of competence. Health policy, for example, includes supporting action, shared competence over certain common safety concerns, and specific Union powers relating to medicines and other regulated products. Fisheries policy includes both exclusive and shared elements. Economic policy combines national authority, Union coordination, and exclusive monetary competence for the euro area.

The constitutional system is therefore one of differentiated allocation rather than complete centralisation or complete decentralisation. Its operation depends on the precise limits of the Treaties, the legal basis of each Union measure, and the principles of conferral, subsidiarity, and proportionality.

11. Key Takeaways

1. The division of competences between the European Union and its Member States is governed principally by Articles 2–6 TFEU and the principle of conferral in Article 5 TEU.
2. The Union possesses only those powers conferred upon it by the Treaties. Competences not conferred remain with the Member States.
3. The Treaties establish three principal categories: exclusive, shared, and supporting, coordinating, or supplementing competences.
4. In areas of exclusive competence, only the Union may legislate and adopt legally binding acts, unless Member States are empowered to act or are implementing Union legislation.
5. Article 3 TFEU identifies five principal areas of exclusive competence: the customs union, certain competition rules, monetary policy for euro-area Member States, conservation of marine biological resources under the common fisheries policy, and the common commercial policy.
6. Article 3(2) TFEU also establishes circumstances in which the Union has exclusive competence to conclude international agreements.
7. Shared competence permits both the Union and Member States to legislate, subject to the rules governing the exercise of Union competence.
8. Article 4 TFEU identifies the principal areas of shared competence, including the internal market, environment, energy, transport, consumer protection, and the area of freedom, security and justice.
9. The exercise of Union competence in a shared field may restrict independent national action, but the restriction is limited to the elements governed by the relevant Union legislation.
10. Protocol No 25 clarifies that the exercise of Union competence does not automatically extend to an entire policy field.
11. Research, technological development, space, development cooperation, and humanitarian aid have special arrangements under which Union action does not prevent Member States from exercising their own competence.
12. Supporting competences allow the Union to assist, coordinate, or supplement national policies without replacing Member State responsibility.
13. Under Article 2(5) TFEU, legally binding Union acts in supporting fields must not entail harmonisation of national laws or regulations.
14. Education, culture, tourism, industry, civil protection, and administrative cooperation are among the fields in which the Union has supporting competence.
15. Public health contains both shared and supporting elements, depending on the subject matter and the Treaty provision relied upon.
16. Economic and employment policy coordination under Article 5 TFEU is a distinct arrangement and should not be confused with exclusive Union competence over all economic policy.
17. The Common Foreign and Security Policy operates under a special Treaty framework established principally by Title V TEU.
18. Every Union legislative act must have an appropriate Treaty legal basis, determined by reference to its aim and content.
19. Subsidiarity applies to the exercise of non-exclusive competences, while proportionality governs the exercise of Union powers more generally.
20. The Court of Justice ensures that the institutions remain within the limits of the competences conferred upon the Union.

12. Frequently Asked Questions

1. What are the three main categories of EU competence?

The three principal categories are exclusive competence, shared competence, and supporting, coordinating, or supplementing competence. They determine whether the Union alone may legislate, whether both the Union and Member States may legislate, or whether the Union may only assist and complement national action.

2. Where are the categories of competence established?

They are established principally in Articles 2–6 TFEU. Article 2 explains the legal consequences of each category, while Articles 3, 4, and 6 identify the principal areas in which they apply.

3. What is exclusive competence?

Exclusive competence means that only the European Union may legislate and adopt legally binding acts in the relevant field. Member States may act only when empowered by the Union or when implementing Union legislation.

4. Which areas fall within exclusive EU competence?

Article 3(1) TFEU identifies five areas:

• The customs union.
• The establishment of competition rules necessary for the functioning of the internal market.
• Monetary policy for euro-area Member States.
• Conservation of marine biological resources under the common fisheries policy.
• The common commercial policy.

Article 3(2) also identifies circumstances in which the Union has exclusive competence to conclude international agreements.

5. Does exclusive EU competence mean that national authorities cannot act?

No. National authorities may implement and enforce Union legislation and may exercise powers delegated to them by the Union. What they generally cannot do is independently legislate in a field reserved to exclusive Union competence.

6. What is shared competence?

Shared competence means that both the Union and Member States possess authority to legislate and adopt binding acts. However, Member States exercise their competence only to the extent that the Union has not exercised its own, subject to the specific Treaty provisions.

7. Which areas are covered by shared competence?

The principal areas include the internal market, social policy within the Treaty-defined limits, economic, social and territorial cohesion, agriculture and fisheries, the environment, consumer protection, transport, trans-European networks, energy, the area of freedom, security and justice, and specified public health matters. Research, space, development cooperation, and humanitarian aid also have special shared-competence arrangements.

8. Does the adoption of EU legislation automatically eliminate national competence?

No. The restriction applies to the elements governed by the Union act. Protocol No 25 expressly clarifies that the exercise of Union competence does not extend automatically to the entire policy area.

9. What is pre-emption in EU law?

Pre-emption describes the effect of exercising shared competence. When the Union legislates in a particular field, Member States may be prevented from adopting independent national rules within the scope of the Union legislation. The precise extent depends on the content and legal effect of the measure.

10. Can Member States legislate again after the Union has acted?

Yes, to the extent that the Union has decided to cease exercising its competence, as provided by Article 2(2) TFEU. The return of national authority remains subject to other applicable EU rules and Treaty obligations.

11. What is supporting competence?

Supporting competence allows the Union to support, coordinate, or supplement the actions of Member States without superseding their competence. National governments retain primary responsibility for the relevant policy fields.

12. Can the Union harmonise national legislation in supporting fields?

Generally, no. Article 2(5) TFEU provides that legally binding Union acts adopted under the Treaty provisions governing supporting competence must not entail harmonisation of Member States’ laws or regulations.

13. Which policy fields are subject to supporting competence?

Article 6 TFEU identifies protection and improvement of human health, industry, culture, tourism, education and training, youth and sport, civil protection, and administrative cooperation.

14. Is public health an exclusive, shared, or supporting competence?

It contains both shared and supporting elements. Common safety concerns in public health are identified as shared competence under Article 4(2)(k) TFEU, while the protection and improvement of human health are included among the supporting fields in Article 6 TFEU. Article 168 further defines the Union’s powers and preserves important national responsibilities.

15. Is education an EU competence?

Yes, but principally a supporting competence. The Union may promote cooperation, mobility, funding, and the exchange of good practices. Member States retain responsibility for the content of teaching and the organisation of their education systems.

16. Does the EU have exclusive competence over all monetary and economic policy?

No. Monetary policy is exclusive for Member States whose currency is the euro. Broader economic policy remains substantially within national competence, although the Treaties establish mechanisms for coordination and common obligations.

17. What is the difference between exclusive competence and the common commercial policy?

The common commercial policy is itself one of the areas of exclusive competence. The distinction is therefore between the general category of exclusive competence and one particular policy field within that category. The common commercial policy governs the Union’s external trade relations.

18. What is the relationship between competence and subsidiarity?

Competence determines whether the Union has legal authority to act and what type of authority it possesses. Subsidiarity determines whether Union intervention is justified in areas outside exclusive competence. It requires the Union to demonstrate that the objectives cannot be sufficiently achieved by Member States and can be better achieved at Union level.

19. Can the EU acquire new competences without amending the Treaties?

The Union cannot create new general areas of competence through ordinary legislation. Article 352 TFEU provides a limited flexibility mechanism where action is necessary to attain Treaty objectives and no specific power is available, but it cannot be used to circumvent the principle of conferral or fundamentally alter the Treaties.

20. Who decides whether an EU measure exceeds the Union’s competence?

The Court of Justice of the European Union has the final judicial authority to interpret the Treaties and determine the legality of Union acts. It may examine the legal basis, the scope of the competence relied upon, and compliance with the applicable Treaty requirements.

Conclusion

The division of competences between the European Union and its Member States is one of the defining features of the Union’s constitutional identity. It establishes the legal boundaries within which European institutions may exercise public authority while preserving the continuing constitutional responsibilities of national governments.

Exclusive competence represents areas in which the Member States have entrusted legislative authority to the Union alone. Shared competence reflects a more complex arrangement in which both levels of government may act, although the exercise of Union authority can restrict national legislative freedom within the scope of adopted European rules. Supporting competence preserves the primary responsibility of Member States while allowing the Union to promote cooperation, provide assistance, and contribute to common objectives.

The system is not a simple division between European and national policy sectors. Its complexity reflects the nature of modern governance. A single subject, such as public health, energy, fisheries, or economic policy, may involve several different legal powers, each governed by a specific Treaty provision. Understanding the allocation of authority therefore requires careful examination of the precise legal basis and substance of the measure concerned.

The principles of conferral, subsidiarity, and proportionality give this structure its constitutional coherence. Conferral determines the limits of Union authority; subsidiarity regulates the appropriate level of intervention in non-exclusive fields; and proportionality ensures that the exercise of Union power does not exceed what is necessary.

Ultimately, the European Union’s division of competences reflects a continuing constitutional relationship between integration and national autonomy. The Member States have created institutions capable of exercising significant common authority, but that authority remains legally defined rather than unlimited. The Treaties do not merely establish what the Union may do. They also determine what remains for the Member States, how the two levels of government must interact, and which legal mechanisms ensure that neither exceeds its assigned powers.

Principal Legal Sources and Further Reading

Primary Treaty provisions

• Treaty on European Union, Article 5 – Conferral, Subsidiarity and Proportionality
• TFEU, Article 2 – Categories of Union Competence
• TFEU, Article 3 – Exclusive Competence
• TFEU, Article 4 – Shared Competence
• TFEU, Article 5 – Economic and Employment Policy Coordination
• TFEU, Article 6 – Supporting, Coordinating and Supplementing Competence
• TFEU, Article 352 – The Flexibility Clause
• Protocol No 25 – Exercise of Shared Competence

Institutional explanations

• European Commission – Areas of EU Action
• EUR-Lex – Division of Competences Within the European Union
• European Parliament – Sources and Scope of European Union Law
• European Union – The ABC of EU Law

Selected case law

• Case 22/70, Commission v Council (ERTA)
• Opinion 1/03 – Lugano Convention
• Opinion 2/94 – Accession to the European Convention on Human Rights
• Case C-300/89, Commission v Council (Titanium Dioxide)
• Case 314/85, Foto-Frost