Article 5 TEU identifies three constitutional principles that govern union competences – these are Conferral, Subsidiarity and proportionality. Under… [602376]

European Law
Question 1
Definition Of Conferral
Article 5 TEU identifies three constitutional principles that govern union competences – these
are Conferral, Subsidiarity and proportionality. Under the principle of conferral, “the union
shall act only within the limits of the competences conferred upon by the Member States in
the Treaties to attain the objectives set out ther ein.”1 Simply put, this means that the
European Union is only able to act within the rights which are conferred by the treaties
signed by the member states. The definition of the principle of conferral, the Union shall act
only within th e 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.
Issues of the Conferral principle
The confe rral principle has different issues such as: limited competence, it doesn’t respond to
a certain level of power and by the way that this principle is build when there is a contrast
and they are two co -existing legislators sometimes one of them would adopt the power of
deciding the supporting measures only. In terms of the conferral, the act has different types of
competences which constitutionally determine the ‘degree’ of power enjoyed within an area.
Other issues are: The original treaties have never sho wn clear distinction between the
competence categories. The different categories of the union competences were discovered in
the 1970’s, which means that they was not even an original objective of the original treaty,
which adds the question of whether it is even serving the purpose that the treaty was created

1 Oxford hand book

for. Also in regards with the treaties only the Union has the ultimate power in some areas in
terms of legislative power and has the ability to adopt legally binding acts. The only time
when the Membe r states are able to do this is when the Union empowers the state to do that
themselves. The only time when the member state is allowed to exercise their competence is
when the Union haven’t exercised their own competence or if the union implements Union
acts. When some of the treaties confers, the Union has a shared capability with the Member
States in a specific area, the union as well as the member states are able to do legislation and
to adopt legally binding acts in the area that they are talking about . In some areas and under
some conditions laid down in the treaties, the Union has competence to take action in order to
support, coordinate or to help the actions of member states without over stepping their
boundaries. The legally binding acts of the Un ion are adopted on the basis of the
requirements of the treaties relating to those specified areas.
Definition of Subsidiarity
The subsidiarity principle supports the following information in areas which do not fall
within its exclusive competence. The U nion shall act only if and where objectives of the
proposed action cannot be sufficiently achieved by the Member States, either at central level
or at regional and local level but may be achieved and carried out better at union level. In the
political phil osophy the idea of subsidiarity has come to represent the idea. All the ideas and
concepts relating to the subsidiarity principle has, much like every other principle its pros and
cons. The positive ideas of this principle is that it encourages ’large asso citions to assist
smaller ones, where they need help, in the same time it discourages the task to a greater and
higher assocition what a smaller and subordinate organisation can do’2. The legal side of the
Union order accepts the subsid iarity ideas as a general constiturional idea ruling and the

2 Oxford hand book

exercise of the Union abilities. This information is contained in Article 5 (3) of the treaties of
the european union which says The subsidiarty ideas can not go within its select ability; the
Union should act only if the action taken to achieve the proposed objective wouldn’t be
achievable by the member states alone.

Issues of the Subsidiarity principle
The main issue with this principle is the comparative efficiency test according to which the
Union can’t act unless in relative terms they find a better way to achieve the objectives of the
proposed action. Along this matter it becomes even worse. For example, the sentencing of the
phrase ‘if and in so far’3 in Article 5(3) T EU has a potential to offer two versions of the
subsidiarity ideal. The first version concentrates on the ‘if’4 question by asking whether the
Union should act at all. In contrast to this, the second hypothetical version, concentrates on
the ‘in -so-far’5 question by asking to what extent the Union should act. In the context of the
textual uncertainties, of these two approaches that have been developed to give real meaning
to the subsidiarity idea. This is an issue a s it creates a duality in the initial treaty which can
lead to much confusion. The first approach focuses on subsidiarity as a judicial standard
while the second concentrates on subsidiarity as a political safeguard of federalism. The
principle of subsidia rity when applied to the executive branch tells us whether the Member
States or the European Union will be best to achieve the administration of the particular
European law. Executive subsidiarity there by operates by itself from the principle’s
applicatio n in the legislative sphere. This can happen even when centralized legislative
action could be justified under the subsidiarity principle the latter could nonetheless mandate

3 Article five quote
4 Article five quote
5 Article five quote

the decentralised execution of European legislation. This judicial definition co ntains two
fundamental conceptual choices. First, the Court assumed that wherever the Union wished to
‘harmonise’ national laws, that objective could never be achieved by national action and thus
necessarily required Union legislation.

Definition of Proportionality
In general terms, proportionality in law refers to the need of fairness and equality in the law;
the punishment must always be proportionate to the crime committed. It is a logical method
used to find the appropriate balance between these t wo concepts: punishment and crime. This
is mainly within criminal law. In other areas of law, for example in relation to article 5 (2) of
TEU, the principle only applies to measures interfering with protected interests which include
fundamental freedoms gu aranteed by the EU treaties. It applies to both administrative and
legislative measures.

Issues of the Proportionality principle
The proportionality principle traditionally has the function to protect the liberal values in the
review of the Union acts, as the values became prohibited against the use of excessive public
power in the context of fundamental European rights. The proportionality in the Union are
recognized so that each restriction of fundamental rights must be proportionate with the
relation to the public interest. The application of the proportionality principle as a
constitutional safeguard of liberalism emerged in Internationale Handelsgesellshaft. The case
involved the review of a Union measure that stipulated the forfeiture of a financial deposit for

an import/export licence. Nevertheless, the Court had expressed a general principle: any
Union act had to be proportionate in the light of affected private interests and fundamental
rights. The function of proportionality principle as a consti tutional safeguard of liberalism
nowadays finds the expression in the Eu Charter of Fundamental Rights. ‘Article 52 of the
Charter states: Subject to the principle of proportionality, limitations [on the rights and
freedoms recognized by this Charter] may be made only if they are necessary and genuinely
meet objectives of general.’6 The treaty of Maastricht and the introduction of Article 5(4) of
TEU have been said to add a federal dimension to the proportionality principle. According to
Article 5(4) TEU, the degree of Union intervention may therefore be limited with regard to
the ‘content or form of Union action’.
Conclusion
To conclude, Article 5 of the Treaty on the European Union establishes the Union’s
competences as subject to th e principles of conferral, subsidiarity and proportionality. These
three principles come with many positives as well as negatives, but generally all work
successfully together to shape the legislative competences of the European Union today. It
does this b y proving the EU and its member states with outlines and basic principles to follow
regarding general law and how its applied.

6 wikipedia refrence

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Books:
EU Law by Elspeth Berry, Matthew J. Homewood, &Barbara Bogusz [Third edition] Oxford Press