← The hardest concepts in European Union law
In one breath
The Union has only the powers the Member States have conferred on it in the Treaties, so every Union act needs a Treaty basis, and powers not conferred stay with the Member States. The Treaties sort the Union’s powers into categories, mainly exclusive, shared and supporting, and the category decides how much room the Member States keep.
The picture
The housekeeper with a signed errand list
A family hires a housekeeper and signs a written list of errands: pay the bills, repair the roof, buy the food. She has no authority beyond the list. If she decides on her own to sell the piano, her good intentions do not make the sale valid, and the family may undo it. Everything she does must point back to a line on the list, and whatever is not on the list stays with the family.
The errands come in kinds. Some are hers alone, such as dealing with the coal supplier, and the family has agreed to stay out of them. Others are shared: she and the family may both act, but once she has settled how a shared errand is done, the family may not do the opposite. A few she merely supports, helping with chores that remain theirs. The Treaty arrangement has the same shape: exclusive competences, shared competences, and areas where the Union only supports or coordinates and may not harmonise national law.
Where the picture stops working
A housekeeper cannot rewrite her own list, and the Member States, as the masters of the Treaties, can change it only together and by their own procedures. But the Court of Justice interprets the list, and it reads the Treaties by their purpose, so the list is not a plain inventory: general clauses and the Union’s objectives have let powers develop within the wording.
How it really works
- 1Know where the rule comes from. The principle of conferral is stated in the Treaty on European Union (Article 5), and the lists of categories are in the Treaty on the Functioning of the European Union (Articles 2 to 6). This is Treaty law, applied and refined by the Court’s case law.
- 2Find the legal basis. Every Union act must rest on a Treaty article that authorises it, and the choice turns on the act’s aim and content, not on what the institutions would prefer.
- 3Identify the category. In exclusive areas, such as the customs union, only the Union may legislate unless it empowers the Member States. In shared areas, such as the internal market, consumer protection, environment and transport, both may act, and Member State room shrinks as the Union legislates. In supporting areas, such as culture, tourism and education, the Union may only support or complement and may not harmonise national laws.
- 4Check the flexibility clause. Article 352 lets the Council, acting unanimously with Parliament’s consent, adopt measures needed to attain a Treaty objective where no other power exists, but not measures that would amount to amending the Treaties.
Why people get it wrong
- Thinking that the Union may act whenever a problem is cross-border or important. Importance is not a power, and each act needs a Treaty basis.
- Reading “competence” as the jurisdiction of a court. In this field it means the power to legislate or act, and who holds it.
- Treating the internal-market power as a general licence. The Court has held that the mere fact of some effect on trade is not enough, and the measure must genuinely help the market function (Tobacco Advertising).
- Assuming that shared competence leaves the Member States free to legislate as they please. Once the Union has legislated, they keep only the room that its act leaves.
- Imagining that conferral frees the Member States from Union law. Within its powers it binds them, and national courts apply it.
A worked example
The facts are invented
Suppose the Commission floats a binding act requiring every Member State to teach a single history syllabus in its schools, on the ground that this would ease student mobility. The first question is the legal basis. Education is an area of supporting competence, and the Treaties exclude harmonising national laws there, so no article could carry the proposal, however worthy its aim.
A narrower proposal fares better. A scheme to fund exchanges between schools in different countries supports national action without replacing it, and it fits the supporting role. Meanwhile an act setting common safety standards for toys sold across borders rests comfortably on the internal-market power, a shared competence.
Try it
A proposed Union act would require all Member States to adopt identical school syllabuses, on the ground that this helps students move between countries. What is the usual analysis?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Treaty on European Union, Article 5, conferral, subsidiarity and proportionality
- Treaty on the Functioning of the European Union, Articles 2 to 6 and 352, categories of competence; flexibility clause
- Germany v Parliament and Council (Tobacco Advertising), Case C-376/98, 2000
Where to go next
More hard concepts in European Union law
- Subsidiarity and proportionality (Institutional law)
- Implied external powers (Institutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.