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European Parliament EUROPEAN PARLIAMENT Directorate General for Research WORKING PAPER THE DIVISION OF COMPETENCES IN THE EUROPEAN UNION POLITICAL SERIES ___ W-26 ___ -~-H7 EN DA DE EL • ES FR IT NL PT Fl SV THIS DOCUMENT IS AVAILABLE ONLY IN ENGLISH (ORIGINAL). THE 'EXECUTIVE SUMMARY' IS AVAILABLE IN ALL THE OFFICIAL LANGUAGES OF THE EUROPEAN UNION. THIS STUDY HAS BEEN DRAWN BY PROFESSOR J.H.H. WEILER, WITH THE CONTRIBUTION OF FRANZ MAYER, UNDER THE TERMS OF PROJECT No IV /95/03. THE OPINIONS EXPRESSED IN THIS DOCUMENT ARE THE SOLE RESPONSIBILITY OF THE AUTHOR AND DO NOT NECESSARILY REFLECT THE OFFICIAL POSITION OF THE EUROPEAN PARLIAMENT. REPRODUCTION AND TRANSLATION FOR NON-COMMERCIAL PURPOSES ARE AUTHORIZED PROVIDED THE SOURCE IS ACKNOWLEDGED AND THE PUBLISHER IS GIVEN PRIOR NOTICE AND SENT A COPY. PUB USHER: EUROPEAN PARLIAMENT DIRECTORATE-GENERAL FOR RESEARCH POLITICAL AND INSTITUTIONAL AFFAIRS DIVISION (IN CONJUNCTION WITH THE TASK-FORCE ON THE 1996 INTERGOVERNMENTAL CONFERENCE) L-2929 LUXEMBOURG TEL. (352) 4300-2758 FAX. (352) 4300-9027 UNDER THE SUPERVISION OF: JOSE JAVIER FERNANDEZ FERNANDEZ MANUSCRIPT COMPLETED IN MARCH 1997 EUROPEAN PARLIAMENT .DIre~ tor a t e G e.n era l f or R e s ear c h WORKING PAPER THE DIVISION OF COMPETENCES IN THE EUROPEAN UNION POLITICAL SERIES ___ W-26 ___ 3*17 EN PREFACE To assist the various parliamentary committees and bodies in their work on the 1996 Intergovernmental Conference, the European Parliament Secretariat's 'Intergovernmental Conference' Task-force, in collaboration with the Political and Institutional Affairs Division of the Directorate-General for Research, has commissioned the present study on 'The Division of Competences in the European Union'. The objective of this study is to define the political and legal instruments necessary for establishing a more transparent, democratic and precise distribution of competences between the European Union and its Member States in the context of the 1996 Intergovernmental Conference. In particular, the present study was foreseen to deal, amongst others, with the following subjects: - an analysis of the functioning of the current system of distribution of powers between the Union and the Member States: attributed powers, implied powers and subsidiary powers; - an analysis of the functioning of the current relationship between Union and the Member State competence: exclusive national or Community powers and the "occupied field"; - an assessment of the legal or political mechanisms needed to establish a new division of competences between the EU and its Member States; - an assessment of an alternative list of competences to be established in order to formulate a precise division of powers between the Union and the Member States; - an examination of the role and the extent of the principle of subsidiarity regarding both the possible legal and political mechanisms to be established, as well as the alternative list of competences or any other possible mechanism; - to propose any other possible alternative mechanisms which would make possible such a division of powers; - conclusions and basic options on the fundamental choice to be made by the European Parliament between these two above-mentioned possibilities or any other one. We hope that this study will make a useful contribution to the current political and legislative debate within the European Parliament. 1996 IGC TASK-FORCE Secretariat Luxembourg, March 1997 The Division of Competences in the European Union The Division of Competences in the European I Inion Table of Contents EXECUTIVE SUMMARY <•> A. APPROACH AND ORIENTATION- PHENOMENOLOGICAL AND NORMATIVE .................................................... 1 B. THE SILENT CONSTITUTIONAL REVOLUTION: THE COLLAPSE OF THE PRINCIPLE OF ENUMERATION AS A CONSTITUTIONAL GUARANTEE IN THE LEGAL ORDER OF THE EUROPEAN UNION . 3 C. A TYPOLOGY OF JURISDICTIONAL MUTATION IN THE EC .............. 7 1. The Categories of Mutation . 7 D. EVALUATING THE MUTATION OF JURISDICTIONAL LIMITS AND THE EROSION OF STRICT ENUMERATION IN THE 70s ............. 16 1. The question of constitutionality . 16 2. Mutation and the question of the democratic character of the Expansion . 18 E. CONFRONTING THIS HERITAGE IN TODAY'S UNION - THE IDEA OF LISTS! . 19 F. EXCURSUS- A NORMATIVE "CASE-STUDY": THE TOBACCO ADVERTISING DRAFT DIRECTIVE . 24 1. Limits to Community Jurisdiction and Competences .......................... 27 G. DRAWING THE JURISDICTIONAL LINE . 29 1. The Commission Proposal For A Council Directive On Advertising For Tobacco Products - Its Content . 31 2. Critique of the Rationale of the Commission and of Article 1 OOa as a Legal Basis . 39 3. The near Total Ban on Advertising and Free Movement of Advertizing Media within the Internal Market . 40 4. Distortion to Competition . 45 5. The Appropriate Legal Basis For The Directive . 48 6. Subsidiarity and The Tobacco Draft Directive .............................. 51 H. ADJUDICATING THE DILEMMA OF COMPETENCES- JUDICIAL KOMPETENZ - KOMPETENZ . 59 I. A EUROPEAN CONSTITUTIONAL COUNCIL . 62 <•> In all the official languages of the European Union PE 166.756 Kompetencejordelingen i den Europedske Union KOMPETENCEFORDELINGEN I DEN EUROPrEISKE UNION - Sammenfattende oversigt - PE 166.756 Kompetencefordelingen i den EuropEeiske Union KOMPETENCEFORDEI.INGEN I DEN EITROPtEISKE UNION - Sammenfattende oversigt - 1. Med undtagelse af omradet international handelspolitik- hvor vi mener, at Frellesskabet bor have sammenfaldende befojelser med WTO - og omradet menneskerettigheder, hvor Frellesskabet bor have generel kompetence til at vedtage en hvilken som heist foranstaltning, som oger beskyttelsen af menneskerettigheder inden for fcellesskabsrettens anvendelsesomrade - mener vi ikke, at Frellesskabet har behov for flere materiel-retlige befojelser. 2. Tvrertimod. Der er i dag oget opmrerksomhed omkring kompetencesporgsmalet i Den Europreiske Union. Den offentlige debat efter Maastricht har klart vist - med rette eller urette - at offentligheden ikke har tillid til, at frellesskabsinstitutionerne er i stand til at garantere visse grrenser for Frellesskabets indgriben i det offentlige liv. Fra mange sider harder vreret rejst krav om, at man med henblik herpa skulle forsoge at "fastnagle" Frellesskabets kompetence. Der bor i denne forbindelse isrer srettes ind for at oge offentlighedens tillid til grrenserne for Frellesskabets og Unionens retlige befojelser. 3. Formalet med denne undersogelse er ikke at fremlregge en optimal liste over eller formel for kompetencefordelingen mellem Frellesskabet og Unionen og medlemsstaterne. Lige siden traktatudkastet blev forelagt, harder vreret i massevis af sadanne lister og formler. De vigtigste af disse er vedfojet som bilag til denne undersogelse. 4. Vi viii stedet fori forste rrekke anlregge en "frenomenologisk" synsvinkel- dvs. vi vil pmve at forsta, hvordan kompetencesporgsmalet kommer til udtryk i en politisk struktur som Frellesskabet. Hvilken forbindelse er der mellem Frellesskabet og andre beslutningsstrukturer og -processer og endelig, hvad kan der gores for at fastlase bestemte befojelser, hvis deter i den retning, man onsker den politiske proces skal ga. 5. Det er et stort dilemma i forbindelse med al kompetencefordeling, at der eksisterer to verdensanskuelser side om side, som pa sin vis er uforenelige. I henhold til den ene af disse verdensanskuelser er kompetencefordeling et funktionelt problem, et sporgsmil om at placere en given sag pa det "bedste", "mest effektive" og "mest rationelle" beslutningsplan. Subsidiaritet kan betragtes som det mest indlysende eksempel pa denne verdensanskuelse: dette princip bygger pa en antagelse om, at beslutninger bor trreffes sa nrert som muligt ved de mennesker, der bemres af dem; men hvis der kan opnas bedre, mere effektive resultater pa et hojere beslutningsplan, vii dette ikke blot vrere en betingelse, men ogsa en begrundelse for at placere de pagreldende beslutninger pa et sadant plan. Det klassiske eksempel i denne forbindelse er den grrenseoverskridende miljoforurening: eftersom ingen stat kan handtere det problem alene, kan og bor det loses pa transnationalt plan. PE 166.756 Kompetencefordelingen i den Europreiske Union 6. Den anden verdensanskuelse er mere principiel en funktionel. Grrenseme mellem de forskellige befejelser betragtes som udtryk for "ukrrenkelige" vrerdier. Denne synsvinkel- der adskiller sig fra den ovenfor beskrevne version af subsidiaritet - er kendetegnet af grundlreggende grrenser. Det forholder sig med grundlreggende grrenser som med grundlreggende rettigheder. Alle gar ind for dem, undtagen nar de kommer i vejen for ens eget yndlingsprojekt. Paberabelsen af grundlreggende grrenser har to parallelle mdder. For det ferste er de udtryk for et menneskesyn, som forbinder de mest dyrebare vrerdier med individuelle samfund, som eksisterer inden for storre politiske strukturer, og disse samfund rna derfor ikke krrenkes. Mindre sociale enheder kan nojagtig lige som enkeltpersoner blive undertrykt af strerkere sociale krrefter og skal derfor beskyttes. Det andet aspekt vedrorer den enkle kendsgerning, at grundlreggende grrenser medvirker til at forhindre en ophobning af magt pa et beslutningsplan. Man gar ud fra, at deter en vrerdi i sig selv at forhindre en sadan magtophobning. 7. Aile ikke-centralistiske systemer, som vores team er bekendt med - Den Europreiske Union, USA, Tyskland og Canada - lider af personlighedsspaltning, da de pa en og samme tid i forskellig udstrrekning pmver at give plads til bade den funktionelle og den principielle
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