Constitutional Principles of Operational Support Towards a ‘Reflexive Regulatory Coopetition’ Reading of Eu Competence Conferral

chapter 4 Constitutional Principles of Operational Support Towards a ‘Reflexive Regulatory Coopetition’ Reading of eu Competence Conferral

A eu Competence Conferral in Constitutional Context

This section analyses the regime of competence conferral in eu law as an inroad into contextualising the constitutional principles structuring eu inte- grated market supervision. It proceeds in two sections. The first section reca- pitulates the pre- and post-Lisbon framework of competences and the regulative and operational principles underlying them (I.). The second section restructures these principles as giving shape to an ‘idea of subsidiarity’ underlying the division of competences between the eu and its Member States. The idea – and not the better-known principle – of subsidiarity allows to identify a particular structural flow in the constitutional principles governing shared competences in eu law (II.). That flow serves as a basis for a particular theo- retical interpretation of those constitutional principles that could serve as a justification for the emergence of operational support supervisory mecha- nisms throughout different sectors of eu market regulation.

I The Treaty Framework of Conferred Competences The institutional system of European integration is structured in accordance with the principle of conferred competences.1 The Lisbon Treaty confirmed and explicated that principle. Article 5 teu now states that ‘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 therein. Competences not conferred upon the Union in the Treaties remain with the Member States’.2

1 P. Craig, ‘Competence: clarity, conferral, containment and consideration’, 29 European Law Review (2004), 324. Article 5(1) teu states that the limits of eu competence are governed by the principle of conferral. In particular, conferral implies that 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 therein. Competences not conferred upon the Union in the Treaties remain with the Member States (Article 5(2) tfeu). See also A. Von Bodgandy and J. Bast, chapter 3 note 72, 227–268. 2 See G. Bermann, ‘Competences of the Union’ in T. Tridimas and P. Nebbia (eds.), European Union Law for the Twenty-First Century. Rethinking the New Legal Order Volume I Constitutional and Public Law External Relations (Oxford, Hart, 2004), 66.

Three categories of conferred competences can be distinguished in that regard: exclusively supranational, shared supranational and national and complementary supranational competences. The principles governing the regulation and operationalisation of shared competences constitute a residual category that determines the extent to which exclusive and complementary structures are being structured. The Court of Justice explicitly distinguished exclusive from non-exclusive competences.3 Exclusive competences represented a small sample of conferred competences that – given their nature – precluded any Member State intervention.4 The Court identified the conservation of marine biological resources under the common fisheries policy5 and the development of a common commercial policy6 to be exclusively supranational in that understand- ing. In addition, competences to conclude international agreements could equally fall within the Community’s exclusive competences. This was particu- larly the case if any steps taken outside the Community legal framework would be incompatible with the unity of the Common Market and the uniform appli- cation of Community law.7 Within a specific area of exclusive competence, Member States lost all powers to lay down rules. The determination of the boundaries of such exclusivity areas therefore delineated exclusive eu competences from permissible Member State intervention. Two additional caveats governed the operations of exclusive competences. First, the scope of exclusivity generally remained limited to instances where interstate trade would be affected without

3 See on the Court’s role in that regard, R. van Ooik, ‘The European Court of Justice and the Division of Competence in the European Union’ in D. Obradovic and N. Lavranos (eds.), Interface between eu Law and National Law (Groningen, Europa Law Publishing 2007), 13. 4 K. Lenaerts, ‘Regulating the regulatory process: “delegation of powers” in the European Community’, 18 European Law Review (1994), 30; R. Schütze, ‘Dual Federalism constitution- alised: the emergence of exclusive competences in the ec legal order’, 32 European Law Review (2007), 6. 5 Opinion 1/75, [1975] ecr 1355; Case 41/76, Donckerwolcke, [1976] ecr 1921, para 31–35; Opinion 1/78, [1979] ecr 2871, para 44–45; Opinion 2/91, [1993] ecr I-1061, para 8, Opinion 1/94, [1994] ecr I-5267, para XIII; Case C-347/03, Regione autonoma Friuli-Venezia Giulia, [2005] ecr I-3785, para 75. 6 Joined Cases 3/76, 4/76 and 6/76, Kramer, [1967] ecr 1279, para 39–41; Case 804/79, Commission v United Kingdom, [1981] ecr 1045, para 17–18; Opinion 2/91, para 8; Case C-25/94, Commission v Council, [1996] ecr I-1469, para 40. 7 See among other cases, Case 22/70, Commission v Council (aetr), [1971] ecr 263, para 28–31; See also Opinion 1/76, [1977] ecr 741 para 5. For a nuanced overview of constitutional prob- lems in that regard, see G. De Baere, Constitutional principles of eu external relations (Oxford, Oxford University Press 2008), 43–51.