The Principle of Conferral: The Limits of European Union Competence

The Principle of Conferral: The Limits of European Union Competence

Introduction

The European Union is a legal and political order with substantial authority to adopt legislation, coordinate policies, conclude international agreements, and establish common rules governing the activities of its Member States. Yet its authority is not unlimited. Unlike a sovereign state possessing general legislative competence, the Union may act only within the powers conferred upon it by the Member States through the Treaties.

This constitutional limitation is expressed through the principle of conferral. It determines the legal boundaries of European integration by establishing that the Union does not possess an inherent or unlimited power to legislate. Its institutions may exercise only those competences that the Member States have granted to it in the Treaties, and they must exercise those powers in accordance with the conditions and procedures laid down in the Treaties.

The principle is fundamental to understanding the constitutional structure of the European Union. It explains why the Union can regulate certain matters in considerable detail while remaining unable to legislate independently in other areas, even where a subject has political, economic, or social importance across Europe. It also explains why the legal basis of every EU legislative measure matters: an institution cannot simply adopt a measure because its objectives appear desirable or because a common European approach might be convenient. It must identify a specific Treaty provision that authorises the action.

Article 5 of the Treaty on European Union (TEU) places conferral alongside two related principles: subsidiarity and proportionality. These principles perform different functions. Conferral determines whether the Union has the authority to act at all. Subsidiarity determines, in areas outside the Union’s exclusive competence, whether the objectives of proposed action can be sufficiently achieved by the Member States or would be better achieved at Union level. Proportionality governs the content and form of Union action, requiring that measures do not exceed what is necessary to achieve the Treaties’ objectives.

Together, these principles establish a constitutional framework for the exercise of European power. They protect the division of authority between the Union and its Member States, regulate the way Union institutions use their powers, and provide legal standards through which the Court of Justice of the European Union (CJEU) can review the validity of EU acts.

The principle of conferral is therefore more than a technical rule about legislative competence. It is a constitutional expression of the nature of the European Union: an organisation whose authority derives from the Treaties, whose powers are limited by those Treaties, and whose institutions must remain within the legal mandate conferred upon them.

This article examines the foundations of conferral, the classification of EU competences, the legal bases for Union action, the relationship between conferral, subsidiarity and proportionality, and the mechanisms through which the limits of European authority are enforced.

1. The Constitutional Foundations of the Principle of Conferral

1.1. The European Union as an organisation of conferred powers

The European Union was created by Member States through international treaties. Those treaties established common institutions and authorised them to exercise powers in defined fields. The Union’s authority is consequently derived rather than inherent.

This distinguishes the EU from a sovereign state. A state generally possesses constitutional authority over a broad range of public matters, subject to its own constitutional structure and international obligations. The European Union, by contrast, cannot assume legislative authority over a subject merely because it considers that subject important or because action at European level might produce economic or administrative advantages.

The Union must demonstrate that the Treaties confer the relevant competence. Its institutions must then act through the appropriate procedures and within the limits established by the relevant Treaty provisions.

The distinction has practical consequences. The Union has extensive powers concerning the internal market, customs policy, competition, trade, agriculture, fisheries, environmental protection, transport, and other fields. However, it does not possess a general competence to legislate in every area of taxation, education, healthcare, culture, criminal law, or social policy. Its authority in these fields varies according to the specific Treaty provisions and the nature of the proposed action.

A policy may be important to all Member States without necessarily falling within an EU legislative competence. Political importance and legal competence are separate questions.

1.2. Article 5 TEU: The express legal foundation

Article 5 TEU provides the central constitutional statement of the principle. It establishes that the limits of Union competences are governed by the principle of conferral, while the exercise of those competences is governed by subsidiarity and proportionality.

Article 5(2) states that, under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out in those Treaties. Competences not conferred upon the Union remain with the Member States.

This provision contains two connected propositions.

First, the Union must identify a Treaty-based source of authority for its action. The objectives of the Treaties do not, by themselves, create an unlimited legislative power. An institution cannot justify a measure simply by arguing that it contributes to economic development, social progress, environmental protection, or European integration. It must establish that the Treaties authorise the particular action.

Second, the absence of a conferred competence has a legal consequence: the competence remains with the Member States. It is not transferred to the Union merely because a subject is politically relevant at European level or because the institutions consider common legislation desirable.

Article 5(1) makes the distinction between conferral and the principles governing the exercise of competence. This distinction is essential. Conferral answers the preliminary question of authority; subsidiarity and proportionality regulate the exercise of authority once a valid competence exists.

1.3. Article 4(1) TEU and the reservation of non-conferred powers

Article 4(1) TEU reinforces this constitutional structure by providing that, in accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.

The provision is sometimes described as establishing a residual competence of the Member States. It means that the Union does not enjoy a general power to intervene whenever the Treaties are silent about a particular subject. Silence does not automatically operate in favour of European institutions.

This is important because the Treaties establish both powers and limits. The Member States have authorised the Union to act in specified areas, but they have not created a general European legislature with unlimited jurisdiction.

Article 4(2) TEU also requires the Union to respect the equality of Member States before the Treaties and their national identities, inherent in their fundamental political and constitutional structures. It recognises essential state functions, including territorial integrity, maintenance of law and order, and safeguarding national security.

Article 4(2) is not a substitute for the principle of conferral, nor does it create a general exemption from EU law. Rather, it forms part of the constitutional framework within which conferred powers are exercised and interpreted.

1.4. Conferral and the concept of limited sovereignty

The principle of conferral reflects the distinctive constitutional arrangement established by European integration. Member States have accepted that the Union may exercise certain powers independently through common institutions and procedures. They have not, however, surrendered all their legislative authority or ceased to exist as sovereign constitutional states.

The Union’s authority is therefore limited by the Treaties, but it is not merely an expression of continuing national discretion. Within the fields where competence has been conferred, EU institutions may adopt legally binding measures that Member States are required to respect. National governments cannot ordinarily disregard those measures simply because they disagree with the policy adopted.

This creates a dual constitutional reality. The Member States remain the source of the Union’s conferred powers, while the Union exercises those powers through an autonomous institutional and legal system. The principle of conferral defines the boundary between the two.

2. The Classification of European Union Competences

The Treaties do not merely state that the Union possesses limited powers. They also classify those powers and specify the legal consequences of each category. The principal framework is found in Articles 2–6 TFEU, which distinguish between exclusive, shared, and supporting, coordinating, or supplementary competences.

This classification, clarified and systematised by the Treaty of Lisbon, is essential to understanding the distribution of authority between the Union and its Member States.

2.1. Exclusive competences: Areas in which the Union acts alone

Under Article 2(1) TFEU, where the Treaties confer exclusive competence upon the Union in a particular area, only the Union may legislate and adopt legally binding acts. Member States may do so themselves only if empowered by the Union or when implementing Union acts.

The purpose of exclusive competence is to ensure that certain matters are governed by a common European framework rather than by potentially divergent national rules. In these fields, independent national legislation could undermine the uniformity of the policy or interfere with the operation of the common system.

Article 3(1) TFEU identifies the principal areas of exclusive Union competence:

1. Customs union.
2. Establishment of the competition rules necessary for the functioning of the internal market.
3. Monetary policy for the Member States whose currency is the euro.
4. Conservation of marine biological resources under the common fisheries policy.
5. Common commercial policy.

These fields differ considerably in subject matter, but they share an important constitutional characteristic: the Treaties allocate the relevant competence to the Union rather than to the Member States acting independently.

The customs union is a clear example. The Union maintains a common external tariff and common rules governing trade with third countries. If each Member State were free to establish its own external customs duties, goods could enter the internal market through whichever state imposed the lowest tariff, undermining the common customs territory.

The common commercial policy similarly requires a unified external approach. The Union negotiates and concludes trade agreements within the scope of its competence, and Member States cannot independently pursue conflicting national commercial policies in matters falling within the Union’s exclusive authority.

Monetary policy for euro-area Member States is another particularly significant example. The Treaties assign monetary policy for those states to the Union framework, with the European Central Bank and the European System of Central Banks performing their respective functions. This does not mean that every aspect of economic policy has become an exclusive Union competence. Fiscal policy, taxation, public expenditure, and many other economic decisions remain subject to different Treaty arrangements.

Article 3(2) TFEU also provides for exclusive Union competence to conclude international agreements where their conclusion is provided for in a Union legislative act, is necessary to enable the Union to exercise its internal competence, or may affect common rules or alter their scope. This provision reflects the relationship between internal and external competences: the Union’s authority to act internationally may be exclusive where independent Member State action would interfere with the effectiveness or uniformity of common EU rules.

Exclusive competence does not mean that national governments and administrations have no role in the relevant policy areas. They may implement EU legislation, enforce common rules, administer customs procedures, and perform other functions assigned to them. The distinction concerns the authority to adopt independent binding rules, not the practical involvement of national institutions.

2.2. Shared competences: Authority exercised by the Union and Member States

Shared competence is the broadest and most practically significant category of EU competence.

Under Article 2(2) TFEU, where the Treaties confer shared competence in a particular area, both the Union and the Member States may legislate and adopt legally binding acts. However, Member States exercise their competence only to the extent that the Union has not exercised its competence. 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 has adopted legislation in a particular field, Member States may be restricted from adopting independent rules in the area covered by that legislation. The extent of that restriction depends on the legal basis and the scope of the EU measure.

Shared competence therefore does not mean that the Union and Member States always possess identical or unrestricted authority. It creates a framework in which the Union may act, while national competence remains available in areas not occupied by Union legislation.

Article 4(2) TFEU lists the principal areas of shared competence, including:

• Internal market.
• Social policy, for the aspects defined in the Treaties.
• Economic, social, and territorial cohesion.
• Agriculture and fisheries, excluding the conservation of marine biological resources.
• Environment.
• Consumer protection.
• Transport.
• Trans-European networks.
• Energy.
• Area of freedom, security, and justice.
• Common safety concerns in public health matters, for the aspects defined in the Treaties.

The internal market is an especially important example. The Union has adopted extensive legislation concerning free movement of goods, services, persons, and capital, as well as competition, product standards, consumer protection, and market regulation. Member States retain legislative authority in many related areas, but their measures must comply with applicable Union rules.

Environmental protection also illustrates the complexity of shared competence. The Union has adopted common standards concerning air quality, water protection, industrial emissions, waste management, biodiversity, and climate-related measures. Member States retain important responsibilities for environmental administration, permitting, enforcement, and policy choices within the framework established by EU law.

The same general structure applies to consumer protection and energy. The Union may establish common requirements where the Treaties authorise it to do so, while national authorities retain responsibilities for implementation, administration, and matters not covered by Union legislation.

Shared competence is thus not a fixed division in which each level of government receives a permanently separate list of subjects. It is a dynamic allocation of authority, influenced by the extent to which the Union has exercised its powers through legislation and other binding measures.

2.3. Supporting, coordinating, and supplementary competences

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

Article 6 TFEU identifies the principal fields in which the Union may exercise this type of competence:

1. Protection and improvement of human health.
2. Industry.
3. Culture.
4. Tourism.
5. Education, vocational training, youth, and sport.
6. Civil protection.
7. Administrative cooperation.

These competences are structurally different from shared competences. The Union may encourage cooperation, support national initiatives, promote common objectives, exchange information, and adopt certain measures, but it cannot use this category as a general authority to harmonise national laws.

For example, in education, the Union may support student mobility, cooperation between universities, vocational training, and exchanges of educational experience. It may establish programmes such as Erasmus+, which facilitate cooperation and mobility across Member States. However, the organisation of national education systems, the content of curricula, and the structure of schools and universities remain primarily matters for national authorities.

Similarly, in culture, the Union may promote cultural cooperation, protect and encourage cultural heritage, and support artistic and creative activity. It cannot use its supporting competence to impose a uniform national cultural system.

In public health, the Union may support Member State action, coordinate responses to cross-border health threats, and adopt measures within the specific powers granted by the Treaties. It does not thereby acquire general authority to replace national healthcare systems or determine every aspect of national health policy.

Article 2(5) expressly provides that legally binding Union acts adopted on the basis of these supporting, coordinating, or supplementary competences must not entail harmonisation of Member States’ laws or regulations where the Treaties exclude such harmonisation.

This limitation is central. Supporting competence is not an indirect route to acquiring a general legislative power that the Treaties have withheld.

2.4. Special categories: Economic policy, employment, and foreign and security policy

The three principal categories do not exhaust the constitutional arrangements of the Treaties. Certain policy fields are governed by specific forms of coordination or special decision-making.

Economic policy is coordinated at Union level, particularly through the framework established by Articles 120–126 TFEU and related provisions. Member States retain significant responsibility for their national economic policies, but they are required to coordinate them within the Union framework. The Union may adopt guidelines, recommendations, surveillance procedures, and measures designed to promote coordination and economic stability.

Employment policy is also subject to coordination. Under Article 5 TFEU, Member States coordinate their employment policies within the Union framework, while the Union may adopt initiatives to encourage cooperation and support national action.

Common foreign and security policy (CFSP) operates under a distinctive constitutional framework established by Title V TEU. It is not simply another shared competence under Article 4 TFEU. Its decision-making arrangements preserve a particularly strong role for the Member States and are subject to special rules, including limitations on the jurisdiction of the CJEU under Article 24 TEU and Article 275 TFEU.

These arrangements demonstrate that the distribution of powers cannot be understood through a single general formula. The Treaties establish different forms of authority, coordination, and institutional participation depending on the policy field.

2.5. Comparative overview of the three principal categories

Category	Legal basis	Main characteristic	Examples
Exclusive competence	Articles 2(1) and 3 TFEU	The Union alone may legislate, subject to specified exceptions	Customs union, common commercial policy, euro-area monetary policy
Shared competence	Articles 2(2) and 4 TFEU	Both levels may act, but national competence is restricted to the extent the Union exercises its competence	Internal market, environment, energy, consumer protection
Supporting, coordinating, or supplementary competence	Articles 2(5) and 6 TFEU	The Union supports or coordinates national action without replacing national competence or harmonising national law where prohibited	Education, culture, tourism, industry, sport

The classification is not merely descriptive. It determines which institutions may act, what forms of legislation may be adopted, and how far Member States retain authority to regulate the relevant subject.

3. The Legal Basis of Union Action

3.1. Why every EU act requires a legal basis

The principle of conferral has a direct consequence for the legislative process: every binding act adopted by an EU institution must rest on a valid legal basis in the Treaties.

A legal basis identifies the provision that authorises the Union to act and determines the applicable procedure. It may specify the policy field, the objective of the measure, the institutions involved, the voting rules, and the role of the European Parliament.

The choice of legal basis is therefore a constitutional question, not a matter of administrative convenience. An institution cannot choose a procedure simply because it is easier or more likely to produce the desired political outcome.

For example, one Treaty provision may authorise the adoption of a measure through the ordinary legislative procedure, involving the European Parliament and the Council as co-legislators. Another may require a special legislative procedure, unanimity in the Council, or a different form of institutional participation.

If the wrong legal basis is used, the measure may be invalid even if its substantive objectives are legitimate.

The requirement protects the institutional balance established by the Treaties and ensures that the institutions exercise only the powers assigned to them.

3.2. The choice of legal basis and the objective and content of the measure

The CJEU has developed a consistent approach to the choice of legal basis. The selection must be based on objective factors that are amenable to judicial review, particularly the aim and content of the measure.

Where a measure has one predominant objective and its other components are merely incidental, the legal basis should generally correspond to the predominant objective.

Where a measure pursues several objectives or contains several components that are inseparably linked, a dual legal basis may sometimes be appropriate, provided that the relevant procedures are compatible.

However, a measure cannot combine legal bases whose procedures are incompatible in a way that undermines the institutional arrangements established by the Treaties.

This approach prevents EU institutions from selecting a legal basis according to political convenience. The legal character of the measure must determine the appropriate Treaty authority.

3.3. The Tobacco Advertising judgment

An important illustration is Germany v Parliament and Council (Case C-376/98), commonly known as the Tobacco Advertising case.

The case concerned a directive prohibiting certain forms of tobacco advertising and sponsorship. The directive had been adopted on the basis of the internal market provisions of the Treaty.

Germany challenged the measure, arguing that the Union lacked competence to adopt such a broad prohibition on tobacco advertising under the legal basis relied upon.

The Court examined whether the measure genuinely contributed to improving the conditions for the establishment and functioning of the internal market. It accepted that differences between national rules could create obstacles to trade or distort competition, but held that the internal market legal basis could not be used as a general power to regulate public health matters without a sufficient connection to the functioning of the internal market.

The Court annulled the directive because its scope exceeded what could be justified under the chosen legal basis.

The judgment was constitutionally important. It demonstrated that a measure cannot be justified merely because it pursues a legitimate policy objective. The Union must possess competence to adopt that measure, and the legal basis must genuinely support the action.

The Court did not deny that the Union could legislate concerning tobacco-related matters where the Treaties conferred relevant powers. It insisted that the internal market competence must not be transformed into a general public health competence.

3.4. The second Tobacco Advertising judgment

The Court’s approach became clearer in Germany v Parliament and Council (Case C-380/03), concerning a later directive on tobacco advertising and sponsorship.

The Court upheld the directive after examining its actual content and its relationship with obstacles to cross-border trade and distortions of competition. It found that the measure had a genuine internal market objective and that its provisions were sufficiently connected to the removal of differences between national regulatory systems.

The two Tobacco Advertising judgments illustrate an important principle: the same policy field may support Union action in some circumstances but not others. The validity of a measure depends on its actual objective, content, and relationship with the relevant Treaty competence.

The Court does not simply ask whether a subject is generally important to the internal market. It examines whether the measure adopted is genuinely supported by the legal basis invoked.

4. Article 352 TFEU: The Flexibility Clause and Its Constitutional Limits

4.1. Why the Treaties contain a flexibility mechanism

A legal system designed to operate over many decades must be capable of responding to developments that cannot always be predicted when its founding rules are drafted. The Treaties establish specific competences for the Union, but they cannot anticipate every practical situation in which action might become necessary to achieve an objective already recognised by the Treaties.

Article 352 TFEU addresses this problem. Commonly known as the flexibility clause, it allows the Union to adopt appropriate measures where action is necessary to attain one of the objectives set out in the Treaties, but the Treaties have not provided the specific powers required.

The provision recognises that the objectives of the Union may require practical measures for which no express legislative competence has been specified. It therefore permits a limited degree of flexibility within the existing Treaty framework.

However, Article 352 is not a general power to expand European authority. It cannot be used to create a new competence independently of the Treaties or to circumvent limitations that the Member States deliberately incorporated into the constitutional structure of the Union.

4.2. Conditions for using Article 352

The flexibility clause is subject to strict procedural and substantive conditions.

First, the proposed action must be necessary to attain an objective established by the Treaties. A general political preference for European action is insufficient.

Second, the action must fall within the framework of the policies defined by the Treaties. Article 352 cannot be detached from the existing constitutional objectives and policy structure of the Union.

Third, the Treaties must not already provide the necessary specific powers. The clause is intended to address a genuine gap, not to replace a specific legal basis merely because the flexibility procedure appears more convenient.

Fourth, the measure must not extend the Union’s powers beyond the framework established by the Treaties. Article 352 provides a means of exercising the Union’s existing constitutional objectives where a specific implementing power is absent; it does not authorise the institutions to redefine those objectives or establish new areas of general competence.

The procedure is also institutionally demanding. The Council must act unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament. National parliaments must be informed of proposals based on Article 352, in accordance with the subsidiarity-monitoring procedure.

Article 352(3) further provides that measures adopted under the clause cannot harmonise national laws or regulations where the Treaties exclude such harmonisation. Article 352(4) excludes its use for objectives relating to the Common Foreign and Security Policy. EUR-Lex+1

4.3. Article 352 is not a substitute for treaty amendment

The constitutional distinction between flexibility and treaty revision is essential.

If the Union requires a new competence that cannot be derived from the existing Treaties, the appropriate route is treaty amendment under Article 48 TEU. That process requires agreement between the Member States in accordance with the Treaty revision procedures and the completion of national ratification requirements.

Article 352 cannot be used to avoid that process. Otherwise, the institutions could enlarge their own powers through ordinary legislation, undermining the principle that the Member States determine the Union’s competences through the Treaties.

The clause therefore provides flexibility in achieving existing Treaty objectives, not an independent constitutional authority to create new objectives or policy fields.

4.4. Opinion 2/94 and the limits of implied constitutional authority

An important illustration of this boundary is Opinion 2/94, concerning the proposed accession of the European Community to the European Convention on Human Rights.

The Court of Justice was asked whether the Community possessed the competence to accede to the Convention under the Treaty provisions then in force, including the flexibility clause.

The Court concluded that accession would have constitutional significance and could not be achieved through the existing legal framework. The Community had not been conferred the necessary power, and Article 235 of the former EC Treaty could not be used to create a competence of that magnitude. Accession would require a Treaty amendment.

The Opinion is significant because it demonstrates that the flexibility clause cannot be used to alter the constitutional structure of the Union. A measure may contribute to an important Treaty objective, but that does not necessarily mean the institutions possess the authority to adopt it.

The distinction remains relevant under the current Treaties. Article 352 is a mechanism for limited flexibility, not a means of transferring additional sovereign powers to the Union without the agreement of the Member States.

5. Implied Powers and the Development of Union Competence

5.1. Express powers and implied powers

The principle of conferral does not require every individual action of the Union to be described in a separate and detailed Treaty provision. Certain powers may be implied by competences that have been expressly conferred.

An implied power is one that is necessary or inherent in the effective exercise of an express Treaty competence. It does not constitute an independent general authority. Its existence depends on the relationship between the proposed action and a power or objective already recognised by the Treaties.

For example, the Union’s ability to regulate an internal policy area may sometimes require it to conclude international agreements concerning that area. If Member States could independently undertake international commitments that affected common EU rules, the effectiveness and uniformity of the Union’s internal legislation might be undermined.

The development of implied external powers demonstrates how the principle of conferral operates in practice. The Treaties establish the legal foundation, but their interpretation may recognise powers necessary to make the expressly conferred competences effective.

5.2. The ERTA judgment: External powers arising from internal competence

A foundational judgment is Commission v Council (Case 22/70), commonly known as the ERTA or AETR case.

The dispute concerned the negotiation of an international agreement on working conditions for road transport. The question was whether Member States could enter into international commitments in a field where the Community had already adopted common rules, or whether the Community possessed the relevant external competence.

The Court held that the Community’s external competence could arise from the adoption of common internal rules. Where the Community had established common rules, Member States could no longer undertake international obligations that might affect those rules or alter their scope.

The judgment established an important constitutional principle: internal legislative competence may generate external competence where necessary to protect the effectiveness and coherence of the Union’s common rules.

The principle is now reflected in Article 3(2) TFEU, which identifies circumstances in which the Union has exclusive competence to conclude international agreements.

The ERTA doctrine does not mean that every internal EU competence automatically gives the Union exclusive authority over all related international matters. The relevant conditions must be satisfied, and the relationship between the proposed international agreement and existing or contemplated common rules must be examined.

5.3. The relationship between implied powers and the principle of conferral

Implied powers must be distinguished from an unrestricted theory of institutional necessity.

An institution cannot claim competence merely because a proposed measure would be useful, efficient, or politically desirable. The measure must be connected to a Treaty competence or objective in a legally sufficient way.

The doctrine therefore permits the Treaties to operate coherently without turning them into an unlimited delegation of authority. It recognises that legal powers may carry necessary consequences, while preserving the requirement that those consequences remain anchored in the constitutional framework established by the Member States.

This distinction is particularly important in external relations, where the Union must sometimes act internationally to protect common rules, implement shared policies, or fulfil responsibilities conferred by the Treaties.

6. Subsidiarity: Deciding Whether the Union Should Exercise a Competence

6.1. The distinction between conferral and subsidiarity

Conferral and subsidiarity are closely related, but they answer different legal questions.

Conferral determines whether the Union possesses competence to act. Subsidiarity determines whether the Union should exercise a competence in a particular situation where the relevant field is not within its exclusive competence.

Article 5(3) TEU provides that, in areas which do not fall within the Union’s exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, whether at central, regional, or local level, but can be better achieved at Union level by reason of the scale or effects of the proposed action.

The principle reflects the idea that public decisions should be taken as close to citizens as is reasonably possible, while recognising that certain problems cannot be adequately addressed through isolated national action.

For example, cross-border environmental pollution may affect several Member States. A purely national regulatory approach may be insufficient where emissions, water systems, or ecological consequences extend beyond national borders. Union action may therefore be justified by the scale and effects of the problem.

By contrast, a matter that can be effectively regulated at national or local level may not require additional EU legislation merely because a European-wide rule would produce greater uniformity.

Subsidiarity is thus concerned with the appropriate level of decision-making, not the initial existence of Union competence. EUR-Lex+1

6.2. The two elements of the subsidiarity test

The subsidiarity assessment involves two connected questions.

First: Can the objectives of the proposed action be sufficiently achieved by the Member States?

This requires an examination of the problem and the capacity of national, regional, and local authorities to address it. If the relevant objective can be adequately achieved through national measures, Union intervention may not be justified.

Second: Can the objective be better achieved at Union level because of the scale or effects of the proposed action?

Even if national action is possible, the cross-border nature, scale, or consequences of the problem may make coordinated European action more effective.

Both elements matter. The Union cannot justify intervention merely by showing that a common rule would be convenient. It must explain why the objectives cannot be sufficiently achieved by Member States acting independently and why Union action offers a genuine advantage.

The assessment is necessarily contextual. Different policy fields present different forms of cross-border interaction, economic interdependence, environmental impact, or regulatory fragmentation. Subsidiarity therefore requires an examination of the actual measure rather than a general assumption that European legislation is always preferable to national regulation.

6.3. Subsidiarity applies to non-exclusive competences

The principle applies in areas where the Union does not possess exclusive competence. It is particularly relevant to shared competences and, where applicable, to other areas in which the Treaties authorise Union action.

It does not operate as a general requirement that the Union must prove the superiority of its action in fields of exclusive competence. In those areas, the Treaties have already allocated the relevant authority to the Union.

This distinction is important because subsidiarity is not a general political veto over European legislation. It is a constitutional test governing the exercise of competence in the fields where the Treaties make it applicable.

6.4. Subsidiarity and proportionality are not interchangeable

Subsidiarity asks whether the Union level is the appropriate level at which to act.

Proportionality asks whether the content and form of the measure go further than necessary to achieve the relevant objective.

A measure may satisfy subsidiarity because a cross-border problem requires European action, but still violate proportionality because it imposes requirements more extensive than necessary.

Conversely, a measure may be carefully designed and proportionate in its content, but still fail subsidiarity if its objectives could be sufficiently achieved by Member States acting independently.

The principles therefore perform separate but complementary constitutional functions.

7. Proportionality: Limiting the Content and Form of Union Action

7.1. Article 5(4) TEU

Article 5(4) TEU provides that, under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The principle governs how the Union exercises its powers. Even where competence exists and Union-level action is justified, the institutions must ensure that the measure adopted does not impose requirements exceeding what is necessary.

Proportionality applies to legislative, administrative, and other forms of Union action. It is also relevant when the Court reviews restrictions on fundamental freedoms and the exercise of national powers within the scope of EU law.

7.2. The traditional proportionality assessment

The Court’s proportionality analysis commonly involves three connected questions:

1. Suitability: Is the measure capable of contributing to the legitimate objective pursued?
2. Necessity: Is there a less restrictive or less burdensome measure that could achieve the same objective with comparable effectiveness?
3. Proportionality in the strict sense: Does the measure impose disadvantages that are excessive in relation to the objective pursued?

The precise intensity of judicial review varies according to the policy field, the nature of the measure, and the discretion available to the EU institutions.

Where the legislature must make complex political, economic, scientific, or technical assessments, the Court may allow a broad margin of discretion. That does not remove the requirement of proportionality, but it influences the intensity of judicial scrutiny.

7.3. An example: Regulation of economic activity

Suppose the Union adopts legislation to protect consumers from a particular commercial risk. It may have competence to regulate the internal market and consumer protection, and Union action may be justified because divergent national rules create cross-border difficulties.

However, the institutions must still consider whether the chosen measure is appropriate and whether its requirements are more extensive than necessary. A complete prohibition of a commercial activity, for example, may require stronger justification than a targeted disclosure requirement or a narrower safety standard.

The example illustrates that the existence of a valid competence does not end the constitutional analysis. The institutions must also justify the scope and intensity of the measure.

Proportionality is therefore a substantive limitation on the exercise of Union authority, not merely a procedural formality.

8. National Parliaments and the Protection of the Principle of Subsidiarity

8.1. The Lisbon Treaty and the strengthened role of national parliaments

The Treaty of Lisbon strengthened the involvement of national parliaments in monitoring the exercise of EU competences. This reflected the recognition that the division of authority between the Union and Member States is not exclusively a matter for European institutions and courts. National parliaments also have a constitutional role in examining whether proposed Union legislation respects the limits established by the Treaties.

Article 12 TEU recognises the contribution of national parliaments to the proper functioning of the Union. Protocol No 2 on the application of the principles of subsidiarity and proportionality establishes a specific procedure through which they may examine draft legislative acts.

This system is commonly known as the early warning mechanism or subsidiarity control mechanism.

It gives national parliaments an opportunity to assess proposed EU legislation before it is adopted, rather than relying exclusively on judicial proceedings after the measure has entered into force.

8.2. The eight-week period and reasoned opinions

Under Protocol No 2, national parliaments have eight weeks from the transmission of a draft legislative act to submit a reasoned opinion explaining why they consider that the proposal does not comply with the principle of subsidiarity.

The opinion must address subsidiarity, not simply express political disagreement with the proposal. A parliament may oppose the policy objective or prefer a different legislative solution, but those objections do not automatically establish a breach of subsidiarity.

Each national parliament has two votes. In a bicameral system, each chamber has one vote. This allocation reflects the different parliamentary structures of the Member States while giving each national legislature a defined role in the monitoring process.

The procedure creates an institutional opportunity for national parliamentary scrutiny of the justification for European intervention. EUR-Lex+1

8.3. The yellow card procedure

If reasoned opinions represent at least one third of the votes allocated to national parliaments, the draft legislative act must be reviewed by the institution that initiated it. The threshold is reduced to one quarter for draft legislative acts concerning the area of freedom, security, and justice where the relevant Treaty provision applies.

This mechanism is known as the yellow card procedure.

Following review, the initiating institution may decide to maintain, amend, or withdraw the proposal. If it maintains the proposal, it must explain its reasons.

The yellow card does not automatically invalidate the proposal or give national parliaments a general veto. Its purpose is to require reconsideration and provide a structured political and constitutional response to concerns about subsidiarity.

8.4. The orange card procedure

A stronger mechanism applies to proposals subject to the ordinary legislative procedure.

If reasoned opinions represent a majority of the votes allocated to national parliaments, the Commission must review the proposal. If it decides to maintain it, it must explain why it considers the proposal compatible with subsidiarity.

The European Parliament and the Council then examine the justification. If the required majorities in either institution consider that the proposal does not comply with subsidiarity, it is not given further consideration.

This is known as the orange card procedure. europarl.europa.eu+1

8.5. The constitutional significance of parliamentary scrutiny

The early warning mechanism does not transfer legislative authority to national parliaments, nor does it replace the ordinary legislative process. Its importance lies in the additional scrutiny it introduces.

It enables national legislatures to question whether a proposed measure genuinely requires action at Union level and whether the reasons given by the Commission adequately address the capacity of national, regional, and local authorities.

The mechanism also connects European legislation with domestic democratic institutions. National parliaments can examine the implications of a proposal for their own constitutional systems and contribute to the debate about the appropriate level of governance.

Its effectiveness depends on the quality of parliamentary scrutiny, the time available for examination, and the willingness of EU institutions to engage seriously with reasoned objections.

9. Judicial Review and the Enforcement of the Limits of EU Competence

9.1. The role of the Court of Justice

The principle of conferral would have limited practical significance if the institutions could determine the scope of their own powers without independent legal review.

The CJEU therefore plays a central role in ensuring that Union institutions act within the limits of the Treaties. It reviews the legality of EU measures and may annul acts adopted without a valid legal basis or in breach of other Treaty requirements.

Article 263 TFEU provides for judicial review of the legality of legislative acts and other acts of the EU institutions, bodies, offices, and agencies intended to produce legal effects vis-à-vis third parties.

An action for annulment may be brought by Member States and certain EU institutions under the conditions established by the Treaties. Individuals and legal persons may also challenge acts under the more restrictive standing requirements in Article 263(4).

The Court examines whether the institution possessed the relevant competence, whether the correct legal basis was selected, whether the applicable procedure was followed, and whether the measure complies with the substantive limits of Union law.

9.2. Annulment for lack of competence

Article 263 TFEU expressly recognises lack of competence as a ground for annulment.

If an EU institution adopts a measure in an area where the Treaties have not conferred the relevant authority, the act may be declared invalid.

This is a direct constitutional consequence of the principle of conferral. The institutions cannot enlarge their own jurisdiction through legislation, administrative practice, or political agreement.

A measure may pursue an objective recognised by the Treaties and still be unlawful if the Union lacks the competence necessary to adopt it in the form chosen.

9.3. The institutional balance

Judicial review also protects the institutional balance established by the Treaties.

The legal basis of an act determines which institutions participate in its adoption and what procedures they must follow. An incorrect legal basis may therefore affect not only the allocation of competence between the Union and Member States but also the respective powers of the Commission, Parliament, and Council.

For example, choosing a legal basis that permits the Council to act without the European Parliament’s full participation, when the Treaties require the ordinary legislative procedure, would alter the institutional balance.

The CJEU’s review ensures that the institutions cannot manipulate legal bases to avoid the democratic or procedural safeguards established by the Treaties.

9.4. The preliminary ruling procedure and national courts

National courts also contribute to the protection of the principle of conferral.

Under Article 267 TFEU, a national court may refer questions concerning the validity of EU acts to the CJEU. If the national court considers that an EU measure may have been adopted without a proper legal basis, it cannot itself declare that measure invalid. The CJEU has authority to determine the validity of Union acts.

This arrangement ensures that questions concerning the limits of EU institutional competence are resolved within the Union’s judicial system and that the validity of EU legislation is not determined differently by courts in different Member States.

It also connects the principle of conferral with the broader system of judicial cooperation discussed in the previous article on primacy and direct effect.

9.5. The distinction between lack of competence and incorrect exercise of competence

A useful distinction must be maintained between two forms of legal defect.

Lack of competence arises where the Union has no Treaty authority to adopt the measure in question. The institution has acted outside the powers conferred upon it.

Incorrect exercise of competence arises where the Union possesses the relevant authority but fails to comply with the legal requirements governing its use. The measure may violate subsidiarity, proportionality, procedural requirements, fundamental rights, or other applicable legal principles.

The distinction matters because conferral, subsidiarity, and proportionality operate at different stages of the constitutional analysis. A measure cannot be justified by proportionality if the Union lacks competence to adopt it in the first place.

10. Specific Constitutional Boundaries: National Security, Public Services, and Fundamental Rights

10.1. National security and essential state functions

The Treaties expressly recognise the continuing responsibility of Member States for certain essential state functions.

Article 4(2) TEU requires the Union to respect the responsibilities of Member States concerning territorial integrity, the maintenance of law and order, and the safeguarding of national security. It states that national security remains the sole responsibility of each Member State.

This provision is particularly important in relation to defence, intelligence, internal security, and the protection of constitutional institutions.

However, the reference to national security does not remove every measure adopted in its name from the scope of EU law. A Member State cannot automatically exempt a measure from Union obligations merely by attaching a national-security label to it. The relevant Treaty provisions and the circumstances of the measure must be examined.

Article 72 TFEU provides that the provisions of the Treaty concerning the area of freedom, security, and justice do not affect the exercise of Member State responsibilities for maintaining law and order and safeguarding internal security.

Article 346 TFEU also provides specific safeguards concerning essential security interests in relation to the production of or trade in arms, munitions, and war material, subject to its conditions.

These provisions demonstrate that the Treaties recognise national responsibilities in sensitive fields while maintaining a legal framework governing the exercise of those responsibilities.

10.2. Public services and services of general economic interest

The organisation and delivery of public services also illustrate the complexity of the competence framework.

Member States retain substantial authority to define, organise, and finance services of general economic interest, subject to the applicable provisions of EU law. Article 14 TFEU recognises the role of such services in promoting social and territorial cohesion, while Protocol No 26 addresses the shared values and wide discretion of national, regional, and local authorities in providing, commissioning, and organising services of general economic interest.

The Union nevertheless has competences concerning the internal market, competition, state aid, and other areas that may affect the organisation of public services.

The result is not a simple division under which public services are exclusively national or exclusively European. National authorities retain important responsibilities, but their decisions may be subject to EU rules where those rules apply.

The principle of conferral determines the legal basis for Union intervention, while the relevant substantive Treaty provisions establish the limits and conditions governing that intervention.

10.3. Fundamental rights do not create new Union competences

The Charter of Fundamental Rights has the same legal value as the Treaties under Article 6(1) TEU. It binds EU institutions and bodies and applies to Member States when they are implementing or otherwise acting within the scope of EU law.

However, the Charter does not expand the Union’s competences.

Article 51(2) of the Charter expressly provides that it does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union.

This is an important constitutional safeguard. The existence of a fundamental right does not automatically give the Union authority to legislate on every matter affecting that right.

For example, the Union may adopt measures protecting equality in employment where the Treaties confer the relevant competence. It cannot use the Charter as a general independent legal basis to regulate every aspect of domestic equality policy.

Fundamental rights constrain the exercise of existing powers; they do not independently create new legislative powers.

11. Conferral in Practice: How to Assess a Proposed EU Measure

The principle of conferral becomes particularly useful when applied to a proposed legislative or regulatory measure.

A structured assessment can help identify whether the Union is acting within the authority conferred by the Treaties.

First: Identify the objective of the measure.

The institution must establish what the measure is intended to achieve. Its objective must be connected to an objective or policy recognised by the Treaties.

Second: Identify the relevant Treaty legal basis.

The measure must be supported by a specific Treaty provision or, where appropriate, by a legally justified combination of provisions. The legal basis determines the scope of authority and the applicable legislative procedure.

Third: Examine the category of competence.

The relevant field may fall within exclusive, shared, or supporting competence. This classification determines whether Member States retain independent legislative authority and under what conditions.

Fourth: Examine the objective and content of the measure.

The legal basis must correspond to the actual aim and content of the proposed act. It cannot be selected merely to secure a preferred voting procedure or institutional arrangement.

Fifth: Apply subsidiarity where required.

If the measure concerns a non-exclusive competence, the institution must explain why the objectives cannot be sufficiently achieved by Member States acting independently and why Union-level action would achieve them better.

Sixth: Apply proportionality.

The content and form of the measure must not exceed what is necessary to achieve the relevant objective.

Seventh: Respect institutional and procedural requirements.

The institution must follow the correct legislative procedure, respect the role of the European Parliament and Council, provide the required reasons, and comply with the relevant Treaty safeguards.

Eighth: Consider judicial review.

If the measure is alleged to exceed Union competence or violate the conditions governing its exercise, it may be subject to judicial review under Article 263 TFEU or, in appropriate circumstances, through a preliminary reference under Article 267 TFEU.

This framework demonstrates that the principle of conferral is not an abstract declaration. It structures the entire process through which European institutions formulate, justify, adopt, and defend legally binding measures.

12. Key Takeaways

1. The principle of conferral is the constitutional foundation of the European Union’s limited powers. The Union may act only within the competences granted to it by the Member States through the Treaties.

2. Article 5(2) TEU provides that competences not conferred upon the Union remain with the Member States.

3. Article 4(1) TEU reinforces the reservation of non-conferred powers to Member States.

4. The Treaty of Lisbon clarified the division of competences through Articles 2–6 TFEU.

5. EU competences are principally classified as exclusive, shared, and supporting, coordinating, or supplementary.

6. In areas of exclusive competence, only the Union may adopt binding legislation, subject to the exceptions established by the Treaties.

7. In areas of shared competence, both the Union and Member States may legislate, but national competence is restricted to the extent that the Union exercises its competence.

8. Supporting, coordinating, and supplementary competences allow the Union to assist Member States without replacing their authority or harmonising national laws where the Treaties prohibit harmonisation.

9. Economic policy, employment policy, and the Common Foreign and Security Policy are governed by additional and sometimes distinctive Treaty arrangements.

10. Every EU legislative act must have a valid legal basis. The choice of legal basis depends principally on the measure’s objective and content.

11. Article 352 TFEU provides a limited flexibility mechanism where action is necessary to attain a Treaty objective but no specific power has been provided. It cannot create new general competences or circumvent Treaty limitations.

12. Implied powers may arise where necessary for the effective exercise of expressly conferred powers. The ERTA judgment is a foundational authority concerning implied external competence.

13. Subsidiarity determines whether action should be taken at Union level in areas outside exclusive competence.

14. Proportionality requires that the content and form of Union action do not exceed what is necessary to achieve the relevant objectives.

15. National parliaments monitor compliance with subsidiarity through the early warning mechanism established by Protocol No 2.

16. The yellow card and orange card procedures require reconsideration of certain legislative proposals when sufficient national parliamentary objections are received.

17. The CJEU protects the principle of conferral through judicial review, particularly under Article 263 TFEU.

18. Article 4(2) TEU recognises the continuing responsibility of Member States for essential state functions, including national security.

19. The Charter of Fundamental Rights constrains the exercise of EU powers but does not create new Union competences.

20. The principle of conferral preserves the constitutional balance between European integration and the continuing authority of Member States.

13. Frequently Asked Questions

1. What is the principle of conferral in EU law?

The principle of conferral means that the European Union may exercise only those powers granted to it by the Member States through the Treaties. It does not possess a general legislative competence comparable to that of a sovereign state. Its institutions must identify a valid Treaty basis for their actions.

2. Where is the principle of conferral established?

It is principally established in Article 5(1) and Article 5(2) TEU. Article 4(1) TEU reinforces the principle by providing that competences not conferred upon the Union remain with the Member States.

3. What happens when a competence has not been conferred upon the EU?

The competence remains with the Member States. EU institutions cannot assume authority over a subject simply because European action might be politically desirable or administratively convenient.

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

They are exclusive competences, shared competences, and supporting, coordinating, or supplementary competences. Their legal characteristics are established principally in Articles 2–6 TFEU.

5. What is an exclusive EU competence?

An exclusive competence is an area in which only the Union may legislate and adopt binding acts, except where Member States are authorised by the Union or are implementing Union legislation. Examples include the customs union, common commercial policy, and monetary policy for euro-area Member States.

6. What is shared competence?

Shared competence means that both the Union and Member States may legislate. However, Member States may exercise their competence only to the extent that the Union has not exercised its own, and may exercise it again where the Union has ceased exercising its competence.

7. What are supporting competences?

Supporting competences allow the Union to support, coordinate, or supplement Member State action without replacing national competence. Education, culture, tourism, industry, sport, and civil protection are examples.

8. Does the EU have general competence over education and healthcare?

No. The Union has supporting and coordinating powers in education and important but defined competences in public health. Member States retain primary responsibility for organising their education and healthcare systems, subject to applicable EU law.

9. What is the difference between conferral and subsidiarity?

Conferral determines whether the Union has legal authority to act. Subsidiarity determines whether the Union should exercise a non-exclusive competence because the objectives cannot be sufficiently achieved by Member States and can be better achieved at Union level.

10. What is the difference between subsidiarity and proportionality?

Subsidiarity concerns the appropriate level of decision-making. Proportionality concerns the scope and intensity of the measure. A Union measure must not go further than necessary to achieve its legitimate objective.

11. What is the legal basis of an EU act?

A legal basis is the Treaty provision authorising an EU institution to adopt a particular measure. It determines the scope of competence, the legislative procedure, and the institutional roles involved.

12. Can the EU adopt legislation without a specific Treaty provision?

Article 352 TFEU allows limited action where necessary to attain a Treaty objective and where the Treaties have not provided the necessary specific powers. However, it cannot be used to create new general competences or circumvent express Treaty limitations.

13. What is the flexibility clause under Article 352 TFEU?

It is a mechanism allowing the Union to adopt appropriate measures to achieve existing Treaty objectives where the necessary specific powers have not been provided. The Council must act unanimously on a Commission proposal and obtain the consent of the European Parliament.

14. What are implied powers?

Implied powers are powers that may arise as necessary consequences of competences expressly conferred by the Treaties. They are not independent general powers but must remain connected to an existing Treaty competence.

15. What did the ERTA judgment establish?

In Commission v Council (Case 22/70), the Court recognised that the Community could acquire external competence where common internal rules had been adopted and Member State international commitments could affect those rules or alter their scope. The judgment became a foundation of the doctrine of implied external powers.

16. What did the Tobacco Advertising judgment establish?

In Germany v Parliament and Council (Case C-376/98), the Court annulled a directive that had been adopted on an internal market legal basis because its scope exceeded what could be justified by that competence. The judgment confirmed that the internal market cannot be used as a general legislative authority over unrelated policy fields.

17. How can national parliaments challenge a proposed EU law?

Under Protocol No 2, national parliaments may submit reasoned opinions within eight weeks of receiving a draft legislative act if they consider that it violates subsidiarity. Sufficient objections may trigger the yellow card or orange card review mechanisms.

18. Can the Court of Justice annul an EU act for lack of competence?

Yes. Under Article 263 TFEU, lack of competence is an express ground for judicial review. An EU act adopted without a valid Treaty basis may be annulled by the Court of Justice.

19. Does national security remain within the responsibility of Member States?

Article 4(2) TEU expressly states that national security remains the sole responsibility of each Member State. Nevertheless, national security arguments must be considered within the applicable Treaty framework and do not automatically exclude every national measure from EU law.

20. Does the Charter of Fundamental Rights expand EU competence?

No. Article 51(2) of the Charter expressly provides that it does not create new powers or tasks for the Union or extend the field of application of Union law beyond the competences defined by the Treaties.

Conclusion

The principle of conferral defines the constitutional boundaries of the European Union. It establishes that the Union is not a sovereign state with unlimited legislative authority, but a legal order whose powers derive from the Treaties concluded by its Member States.

This limitation does not make European authority merely symbolic. Within the fields in which competence has been conferred, Union institutions can adopt binding legislation, establish common policies, regulate cross-border economic activity, and create legal obligations enforceable throughout the Member States. The distinctive character of the system lies in the combination of limited constitutional authority and substantial legal effectiveness.

The classification of competences into exclusive, shared, and supporting categories provides the basic structure for understanding this distribution of powers. The legal-basis requirement ensures that institutions act under the correct Treaty provisions. Article 352 introduces a carefully restricted degree of flexibility, while the doctrine of implied powers allows the Union to exercise competences necessary for the effectiveness of its existing responsibilities.

Subsidiarity and proportionality complete the framework. They recognise that possessing a competence does not automatically justify every possible exercise of it. European institutions must consider whether action at Union level is necessary and whether the chosen measure goes beyond what is required to achieve its objective.

The involvement of national parliaments and the judicial review exercised by the CJEU further protect this constitutional structure. They provide mechanisms for questioning the justification, legality, and scope of European intervention.

Ultimately, conferral expresses one of the central constitutional characteristics of European integration: the Union has genuine authority, but that authority is legally limited. The Member States have created a common system capable of exercising powers collectively, while retaining the constitutional responsibility for determining the extent of those powers through the Treaties.

The principle is therefore essential not only to understanding what the European Union can do, but also to understanding what it cannot do, who determines those limits, and how they are protected within the European legal order.

Principal Legal Sources and Further Reading

Treaties and official legal texts

• Treaty on European Union (TEU) — especially Articles 4 and 5, concerning Member State responsibilities, conferral, subsidiarity, and proportionality. EUR-Lex+1
• Treaty on the Functioning of the European Union (TFEU) — particularly Articles 2–6 on the categories of competence, Article 263 on judicial review, Article 267 on preliminary rulings, and Article 352 on the flexibility clause.
• Article 352 TFEU — the legal basis and limitations of the flexibility clause. EUR-Lex
• Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality — national parliamentary scrutiny and the subsidiarity control mechanism.
• Charter of Fundamental Rights of the European Union — particularly Article 51 on the scope of application and the limits of Union competence.

Official EU institutional explanations

• European Commission: Areas of EU Action — an overview of the areas in which the Union and Member States may act. European Commission
• EUR-Lex: Principle of Conferral — explanation of the constitutional principle and the reservation of non-conferred powers to Member States. EUR-Lex
• EUR-Lex: Division of Competences — overview of exclusive, shared, and supporting competences. EUR-Lex
• European Commission: Subsidiarity Control Mechanism — the early warning mechanism and parliamentary scrutiny. European Commission+1
• European Parliament: The Principle of Subsidiarity — the constitutional purpose and operation of subsidiarity. European Parliament

Important judgments and opinions of the Court of Justice

• Commission v Council, Case 22/70 (ERTA) — implied external powers and the relationship between internal common rules and international agreements.
• Opinion 2/94 — the limits of the former Community’s competence to accede to the European Convention on Human Rights. EUR-Lex+1
• Germany v Parliament and Council, Case C-376/98 — limits of the internal market legal basis and the annulment of the original Tobacco Advertising Directive. EUR-Lex+1
• Germany v Parliament and Council, Case C-380/03 — the later tobacco advertising directive and the use of the internal market legal basis.