International Bachelor of LAW Program 2018-2019
EU Decision Making Course Notes by 18024580 Page 1 of 15
Course notes
Lecture 1: Competences and procedures
▪ The Union and the Member States: division of competences
EU institutions may only act where the TEU & the TFEU have given them the power to act, i.e. where the
EU has competence. MS cannot act contrary to the EU competences – as held by the Court of Justice of
the European Union in Case 22/70 Commission v Council, para. 30-31. The competences of the Union are
envisaged to be evolving, dynamic, capable of expansion and reaction.
Competence Creep
Gradual loss or transfer of competences from the MS to the EU. The tools that helps to prevent the EU
from going beyond its competences: subsidiarity & proportionality (Art 5(3-4) TEU).
Actions
- Regulatory actions: enacting binding & non-binding law
- Non-regulatory actions: incl. redistributive action (disbursement of the budget), coordination,
guidance, etc.
Action taken by the EU without an appropriate legal basis is unlawful & can be annulled by the CJEU.
Principle of Conferral | Art. 5(2) TEU
“Under the principle of conferral, the Union shall act only within the limits of the competences conferred
upon it by the MS in the Treaties to attain the objectives set out therein. Competences not conferred upon
the Union in the Treaties remain with the MS.”
Aim: no harmonisation of Member
State laws or regulations.
▪ The Union institutions overstepping their competences
An action for annulment can be brought before the CJEU based on Art.s 263 & 264 TFEU. E.g. Case C-
376/98 Germany v European Parliament and Council [2000] ECR I-8419 (Tobacco Advertising).
, International Bachelor of LAW Program 2018-2019
EU Decision Making Course Notes by 18024580 Page 2 of 15
▪ The Community Method
The usual decision-making method in the EU, characterized by:
- The European Commission’s role in legislative initiative;
- The Council of Ministers (of the European Union)’s role in decision-making;
- Involvement of the European Parliament in different degrees of decision-making:
o Ordinary legislative procedure | Art 294 TFEU (90% of EU Law);
Joint adoption by Parliament and Council
o Consent procedure | Art 312(2) TFEU;
The Council must obtain the approval of the Parliament before adoption of (secondary) legislation. The
Parliament has the right to veto the proposed legislation, but it does not include amendments.
o Consultation procedure | Art 109 + 113 TFEU [taxation].
The Council must obtain the opinion of the Parliament before adoption of (secondary) legislation. However,
the Council can choose to ignore the Parliament’s opinion. The Parliament’s opinion is, thus, NOT binding on
the Council, and the Parliament has NO veto right under this procedure. Nevertheless, the Council must
always obtain the opinion of the Parliament where the Treaties so require.
Case 138/79 Roquette Freres v Council, judgement of 29 October 1980
“In the absence of the opinion of the Parliament required by Art. 43 of the Treaty, Regulation No 1293/79
amending Council Regulation No 1111/77 must be declared void […]” | para. 37.
Case 65/93 European Parliament v Council
If the Commission proposal has been substantially altered, the Parliament must be consulted again by the
Council. Failure to do so will result in the annulment of the measure by the CJEU.
- The role of the CJEU in providing judicial remedies
Passerelle provisions | Art. 48(7) TEU
Allowing, without treaty amendment, to change the legislative procedure from a special to an ordinary
one – in certain cases e.g. Art. 153 TFEU: concerning certain aspects related to the protection of workers;
and Art. 81(3) TFEU: concerning certain aspects of family law with cross-border implications
Criticism of Community Method
This method entails non-transparent decision-making in the EU institutions. There is limited democratic
input and limited possibilities for citizens to participate in the decision-making process. And there are
tensions between the intergovernmental and supranational elements leading to “decision traps”.
Type of Acts to be adopted | Art. 296 TFEU
The institutions shall select the type of act to be adopted, where the Treaties do not specify, on a case-by-
case basis, in compliance with the applicable procedures and with the principle of proportionality.
Legal acts shall state the reasons on which they are based (…).
▪ The Open Method of Coordination (OMC)
The alternative method of the Community Method is the OMC, which was formally introduced in 2000 as
an EU method of soft governance that does not result in binding EU legislation i.e. there are no legal
commitments. It aims to spread best practice and achieve convergence towards EU goals used in areas of:
- Shared competence between the EU & the MS
- Coordinating, complementing, supplementing EU competence
EU Decision Making Course Notes by 18024580 Page 1 of 15
Course notes
Lecture 1: Competences and procedures
▪ The Union and the Member States: division of competences
EU institutions may only act where the TEU & the TFEU have given them the power to act, i.e. where the
EU has competence. MS cannot act contrary to the EU competences – as held by the Court of Justice of
the European Union in Case 22/70 Commission v Council, para. 30-31. The competences of the Union are
envisaged to be evolving, dynamic, capable of expansion and reaction.
Competence Creep
Gradual loss or transfer of competences from the MS to the EU. The tools that helps to prevent the EU
from going beyond its competences: subsidiarity & proportionality (Art 5(3-4) TEU).
Actions
- Regulatory actions: enacting binding & non-binding law
- Non-regulatory actions: incl. redistributive action (disbursement of the budget), coordination,
guidance, etc.
Action taken by the EU without an appropriate legal basis is unlawful & can be annulled by the CJEU.
Principle of Conferral | Art. 5(2) TEU
“Under the principle of conferral, the Union shall act only within the limits of the competences conferred
upon it by the MS in the Treaties to attain the objectives set out therein. Competences not conferred upon
the Union in the Treaties remain with the MS.”
Aim: no harmonisation of Member
State laws or regulations.
▪ The Union institutions overstepping their competences
An action for annulment can be brought before the CJEU based on Art.s 263 & 264 TFEU. E.g. Case C-
376/98 Germany v European Parliament and Council [2000] ECR I-8419 (Tobacco Advertising).
, International Bachelor of LAW Program 2018-2019
EU Decision Making Course Notes by 18024580 Page 2 of 15
▪ The Community Method
The usual decision-making method in the EU, characterized by:
- The European Commission’s role in legislative initiative;
- The Council of Ministers (of the European Union)’s role in decision-making;
- Involvement of the European Parliament in different degrees of decision-making:
o Ordinary legislative procedure | Art 294 TFEU (90% of EU Law);
Joint adoption by Parliament and Council
o Consent procedure | Art 312(2) TFEU;
The Council must obtain the approval of the Parliament before adoption of (secondary) legislation. The
Parliament has the right to veto the proposed legislation, but it does not include amendments.
o Consultation procedure | Art 109 + 113 TFEU [taxation].
The Council must obtain the opinion of the Parliament before adoption of (secondary) legislation. However,
the Council can choose to ignore the Parliament’s opinion. The Parliament’s opinion is, thus, NOT binding on
the Council, and the Parliament has NO veto right under this procedure. Nevertheless, the Council must
always obtain the opinion of the Parliament where the Treaties so require.
Case 138/79 Roquette Freres v Council, judgement of 29 October 1980
“In the absence of the opinion of the Parliament required by Art. 43 of the Treaty, Regulation No 1293/79
amending Council Regulation No 1111/77 must be declared void […]” | para. 37.
Case 65/93 European Parliament v Council
If the Commission proposal has been substantially altered, the Parliament must be consulted again by the
Council. Failure to do so will result in the annulment of the measure by the CJEU.
- The role of the CJEU in providing judicial remedies
Passerelle provisions | Art. 48(7) TEU
Allowing, without treaty amendment, to change the legislative procedure from a special to an ordinary
one – in certain cases e.g. Art. 153 TFEU: concerning certain aspects related to the protection of workers;
and Art. 81(3) TFEU: concerning certain aspects of family law with cross-border implications
Criticism of Community Method
This method entails non-transparent decision-making in the EU institutions. There is limited democratic
input and limited possibilities for citizens to participate in the decision-making process. And there are
tensions between the intergovernmental and supranational elements leading to “decision traps”.
Type of Acts to be adopted | Art. 296 TFEU
The institutions shall select the type of act to be adopted, where the Treaties do not specify, on a case-by-
case basis, in compliance with the applicable procedures and with the principle of proportionality.
Legal acts shall state the reasons on which they are based (…).
▪ The Open Method of Coordination (OMC)
The alternative method of the Community Method is the OMC, which was formally introduced in 2000 as
an EU method of soft governance that does not result in binding EU legislation i.e. there are no legal
commitments. It aims to spread best practice and achieve convergence towards EU goals used in areas of:
- Shared competence between the EU & the MS
- Coordinating, complementing, supplementing EU competence
