Abstract
From its early days, the European Union or, as it first was called, the European Economic Community and the European Community, has tried to come to terms with its relationship with the Member States by establishing a federal-like distribution of legislative competences and by defining itself as an independent legal order based on the notion of primacy of Community law. There is, however, an embryonic form of double enumeration, albeit of a dispersed nature, between the European Union and its Member States.
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Notes
- 1.
See Costa v. Enel, 15 July 1964, Case 6/641 [1], mentioned in the particular declaration attached by the inter-governmental conference to the TEU and the TFEU (17. Declaration concerning primacy): “The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260): ‘Opinion of the Council Legal Service of 22 June 2007—It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 [1]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.’”
- 2.
European Governance—a White Paper. Brussels, 25.7.2001, COM(2001) 428 final, p. 34 f.
- 3.
European Union document SN 273/01 of 15 December 2001.
- 4.
Laeken Declaration on the Future of the European Union (15 December 2001), at https://www.cvce.eu/en/obj/laeken_declaration_on_the_future_of_the_european_union_15_december_2001-en-a76801d5-4bf0-4483-9000-e6df94b07a55.html (accessed on 31 January 2018).
- 5.
Piris 2010, p. 76.
- 6.
According to Article 3(1), the Union shall have exclusive competence in the following areas: customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; and common commercial policy. In addition, according to Article 3(2), the EU has treaty-making powers in these areas.
- 7.
According to Article 4(2), shared competence between the EU and the Member States applies in the following principal areas: internal market; social policy, for the aspects defined in this Treaty; 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; and common safety concerns in public health matters, for the aspects defined in the TFEU.
- 8.
According to Article 6, these competences are the following: protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; and administrative cooperation. See Piris 2010, p. 74 f.
- 9.
The parallel competences mentioned in Article 4(3) and 4(4) are the following: research; technological development; space; development cooperation; and humanitarian aid. See Rosas and Armati 2012, p. 24: “In these areas, the Union has competence to carry out activities but the exercise of that competence shall not result in Member States being prevented from exercising theirs.”
- 10.
Probably partly for this reason, it is possible for Piris 2010, p. 331, to state the following: “The Lisbon Treaty did not change the nature of the Union, which remains a partially federal entity.”
- 11.
Sport can be both an employment and business, which are EU competences.
- 12.
Costa v E.N.E.L. (Case 6/64) [1964] ECR 1203.
- 13.
Rosas and Armati 2012, p. 25.
- 14.
There is a declaration by the inter-governmental conference (18. Declaration in relation to the delimitation of competences) to that effect attached to the TEU and the TFEU: “The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 241 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission’s declaration that it will devote particular attention to these requests. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”
- 15.
Jordförvärvslag för Åland (3/1975). On the basis of this Act, the Legislative Assembly of the Åland Islands has enacted legislation that specifies the procedures further. See the Ålandic Act (2003:68) on the Right to Acquire Real Property and on the Permit to Acquire Real Property.
- 16.
Lag om undantag för landskapet Åland i fråga om mervärdesskatte-och accislagstiftningen (1266/1996).
- 17.
Landskapslag (1996:47) om rätt att utöva näring.
- 18.
See Tobakslag (1993:581), which applies generally to tobacco products, but contains a specific rule concerning snuff in Section 9a(3), according to which the prohibition in the Act to make reference to taste, smell or additives does not apply to snuff.
- 19.
It deserves to be mentioned that neither the Faroe Islands nor Greenland are parts of the European Union, although Denmark is a Member State. The Faroe Islands has a fisheries agreement and a free trade agreement with the EU. When Denmark joined the European Economic Community, Greenland became a part of the EEC, but in 1985, a withdrawal of Greenland from the EEC occurred on the basis of negotiations between Denmark and the EEC.
- 20.
In addition, the Protocol (No 17) on Denmark exempts Denmark from the obligation to subject the Danish Central Bank to the European System of Central Banks according to Article 14 of the Statute of the European Central Bank in relation to those parts of Denmark that are not part of the European Union (which are the Faroe Islands and Greenland).
- 21.
Lov nr. 817 af 21. december 1988 om Møntlov.
- 22.
Lov nr 116 af 07/04/1936 om Danmarks Nationalbank.
References
Piris JC (2010) The Lisbon treaty—a legal and political analysis. Cambridge University Press, Cambridge
Rosas A, Armati L (2012) EU constitutional law—an introduction. Hart Publishing, Oxford and Portland, Oregon
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Suksi, M. (2018). Excursus: The European Union. In: Double Enumeration of Legislative Powers in a Sub-State Context. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-90921-9_6
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