European Law and the Principle of Conferral

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  • Topic: European Union, Treaty of Lisbon, European Commission
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EUROPEAN LAW AND THE PRINCIPLE OF CONFERRAL
The Principle of Conferral is a fundamental principle of European Union law as stipulated in Article TEU 5(1) its limits of Union competences are governed by the principle of conferral According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states. This principle has always underpinned the European Union, but it was explicitly specified for the first time in the failed Treaty establishing a Constitution for Europe and carried over into its replacement, the Treaty on the Functioning of the European Union.

2) After the treaty of constitutional treaty was rejected in France and Holland in 2005 because the union was taken too much power than it meant to be, and also lacks accountability, transparency and clear cut division of competences in the union, this was carried over in to the treaty of Lisbon. Art 4 and 5 TEU provides the principles of competence, fidelity, conferral, subsidiarity and proportionality. And Art 2-6 TFEU provide further details about the categories and areas of union competence and the division of competences. Art 5(1) TEU provides that the limit of union competences are governed by the principle of conferral, and that the use of union competences are governed by the principle of subsidiarity under Art 5(3) and proportionality under Art 5(2) which are both concerned with the exercise of powers and rely on protocol 2 for definition, and the union acts are open to possible challenges if breached proportionality. Art 3 TFEU sets out the exclusive competences for example, e.g. customs duties, in which member states cannot act at all, Art 4TFEU sets out the areas of shared and concurrent competences, whereby the member states may act if the EU has not yet aced or has ceased to act, And Art 6 TFEU provides competences for the EU to act in support of the member states own actions only.

3) Whereas a major inter­Institutional function is the law­creation process with, in essence, the Commission proposing legislation and, eventually, the Council having the responsibility for enacting it, disputes between these institutions have arisen when the Commission proposed the measure, a Directive, say, should be based on a particular Treaty Article – i.e., a particular legal basis ­ but the Council then enacted it under a different Article and, perhaps, a different legal basis. With reference to such a situation, Shaw has expressed the opinion that: “In so far as disputes exist between the Community’s more and less supranational institutions (e.g. between the Commission and the Council), disputes between the institutions may also conceal an element of dispute between the interests of the Member States and those of the Community.” The basic principle underpinning legal base was expressed in Case 45/86, Commission v. Council (Generalised Tariff Preferences) where the ECJ expressed the opinion that: the choice of a legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. In October 2000, in Case C­376/98, Federal Republic of Germany v. European Parliament and Council, the ECJ annulled Council Directive 98/43, which aimed to ban totally the sponsorship and advertising of tobacco, on the grounds that the Treaty articles on which it was based – ‘old’ Arts.100a(1), 57(2) and 66EC ­ were not suited to the objectives of the Directive. 4) Issues decided by the Court;

A) To annul Articles 3 and 4 of Directive 2003/33/EC concerning in particular the prohibition of advertising and sponsorship of tobacco products in the printed press and broadcasting. B) Article 95 of the EC Treaty, which is the basis for acts aimed at...
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