Division and Exercise of Competence
Competence and Legal Bases
As discussed in Chapter 1, the EU is an international organisation set up through agreements between the Member States, that is, the Treaties. As such it is not a sovereign entity and does not have any autonomous source of authority, independent of the Member States. Within the legal order created by the Treaties, this is reflected in the principle of conferral according to which the EU may act only within the limits of the competences conferred upon it by the Member States in the Treaties. Competences not conferred upon the Union remain with the Member States (Art 5(2) TFEU). The specific provisions in the Treaties, primarily the TFEU, which define the EU’s competence to take measures within a particular policy area, how these measures are to be decided, and for which aims they may be taken, are referred to as ‘legal bases’. A legal basis thus provides the justification of, as well as instructions for, EU action within a particular policy area. It should be clarified that the taking of ‘measures’ in this context means the adoption of legal acts such as directives and regulations and decisions.
There are three different levels of competence that may be conferred upon the Union. The highest, or most extensive, is ‘exclusive competence’. It means that the Member States have transferred all authority to adopt legally binding acts within the policy area at issue to the EU and may do so themselves only when EU law empowers them to do so or for the purpose of implementing Union acts (Art 2 (1) TFEU). This applies to a few areas, among them the important common commercial policy (CCP), that is, the regulation of trade with third countries, and the conservation of marine biological resources under the common fisheries policy
(CFP) (Art 3 TFEU).
Several other areas, including environment, consumer protection, transport, energy, agriculture, and fisheries (excluding the conservation of marine biological resources), and not least the internal market, are subject to ‘shared competence’. It means that both the Union and the Member States may legislate and adopt legally binding acts in these areas. However, the Member States may exercise their competence only as long as and to the extent that the Union has not exercised its competence (Art 2 (2) TFEU). As soon as EU measures have been adopted in an area subject to shared competence they must be analysed to determine the extent to which individual Member States may still act in that area.
EU Environmental Law and Policy. David Langlet and Said Mahmoudi. © David Langlet and Said Mahmoudi 2016. Published 2016 by Oxford University Press.
There are also policy areas in which the EU only has competence to carry out actions to support, coordinate, or supplement the actions of the Member States. Among these are protection and improvement of human health, industry, tourism, education, and administrative cooperation. Legally binding EU acts relating to these areas may not entail harmonisation of Member States’ laws or regulations. (Arts 5 (2) and 6 TFEU.)
This listing of competencies in the TFEU does not mean that it is always clear what sort of competence applies with respect to a specific measure that the Union or a Member State wish to take. It is, for example, easy to state that the CCP is subject to exclusive Union competence, whereas energy policy falls within the area of shared competence. But what about a measure through which the EU becomes party to an international agreement that regulates international trade in some kind of energy commodity? In reality, individual policy measures often affect more than one policy area. If these are associated with different levels of EU competence, the determination of which is the correct legal basis will be decisive for what competence is to be exercised by the Union and the Member States respectively. This requires careful analysis of each measure as well as of the legal bases concerned and is ultimately for the Court of Justice to decide. We will return to the principles governing the choice of legal basis in section 4.6.
Whether a specific measure falls, say, under the CCP or environmental policy is decisive for whether the Union has exclusive competence to act or if the competence is shared with the Member States. But the choice between two legal bases that are both subject to shared competence can also be highly significant. Measures which at least partly aim to protect the environment are, as will soon be further discussed, typically based on either the legal basis for the environment or that for the internal market, both of which prescribe shared competence. However, whether one or the other of these are chosen as the legal basis has important implications for the right of individual Member States to maintain or adopt provisions that pursue a higher level of environmental protection than that opted for by the Union. Put differently, the harmonising effect of EU legal acts differs depending on their legal basis.
In areas that are not subject to secondary EU law there is obviously no need to discuss legal bases. In such cases the Member States’ right to adopt their own measures is only restricted by the Treaties. What that means has been discussed in Chapter 3.
The present chapter looks at the legal bases most commonly used to pursue environmental objectives, as well as those that have the greatest impact on the right of the Member States to take their own environmental protection measures in areas subject to secondary EU law.
As already noted, the EU has had explicit competence to take measures primarily aimed at protecting the environment since such a legal basis was added to the EEC Treaty by the Single European Act (SEA) in 1987. In practice, however, legal acts based on other legal bases are of equal importance for the environmental impact of EU law. This follows not least from the principle of integration (Art 11 TFEU) according to which environmental protection requirements must be integrated, when relevant, into the definition and implementation of EU policies and activities in all policy areas. It should also be noted that a number of legal acts having protection of human health and/or the environment as an important objective were adopted even before the then EEC got formal competence in the field of environment.  That environmental policy objectives are pursued within other policy areas, and hence on other legal bases, is thus nothing new.
Here, the greatest attention will be devoted to the legal basis for measures the primary aim of which is environmental protection, that is, Article 192 TFEU, and to those which primarily aim at the establishment and functioning of the internal market, that is, Article 114 TFEU. The latter is of great importance both because core environmental objectives are pursued through such measures (even though environmental protection has not been deemed their primary objective) and because acts using this legal basis define the room for Member State action in many areas with significant implications for environmental and health protection. A few other legal bases will also be discussed in this chapter, although more briefly. These are the legal basis for agriculture and fisheries policy, which has inter alia been used to regulate environmental and health aspects of pesticides, the one for the CCP, and the legal basis for energy policy, both of which are areas in which environmental considerations play, or need to play, an important part.
Whereas the principles for choosing between different legal bases will be discussed in more detail towards the end of this chapter, it is appropriate to mention here that the choice essentially comes down to what is deemed to be the ‘centre of gravity’ of the legal act in question. This means that if a legal act has environmental protection as its centre of gravity it should be based on Article 192 TFEU even though it also aims to uphold the internal market, and vice versa. There are also examples of legal acts that have been based on more than one legal basis.
How then is one to know which legal basis has been used for the adoption of a specific legal act, such as a directive? It follows from the requirement of legal certainty and the duty to state reasons in Article 296 TFEU that any binding legal act must expressly indicate its legal basis.2 This is usually done at the outset of the act. A statement like this: ‘The European Parliament and the Council of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof... have adopted this Directive’ means that the Directive at issue is a measure adopted based on the EU’s competence in the field of the environment.