The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future (Modern Studies in European Law)

The issue of competence division is of fundamental importance as it reflects the ‘power bargain’ struck between the Member States and their Union, determining the limits of the authority of the EU as well as the limits of the authority of the Member States. It defines the nature of the EU as a polity, as well as the identity of the Member States. After over six years since the entry into force of the Lisbon Treaty, it is high time to take stock of whether the reforms that were adopted to make the Union’s system of division of competences between the EU Member States clearer, more coherent, and better at containing European integration, have been successful. This book asks whether ‘the competence problem’ has finally been solved. Given the fundamental importance of this question, this publication will be of interest to a wide audience, from constitutional and substantive EU law scholars to practitioners in the EU institutions and EU legal practice more generally. Volume 79 in the Series Modern Studies in European Law Foreword Contents Notes on Contributors Part I General Reflections 1 The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future The Ever-Increasing Importance of the Competence Question The Legal Principles Limiting EU Competence The Problem of Competence Creep The Legal Principles Limiting Member State Competence Beyond Legislative Competence: The Real Sources of 'Creep' Implications for Legal Practice The Way Forward Final Thoughts 2 The Competence Divide of the Lisbon Treaty Six Years After General Observations New Developments Post Lisbon What about the Recent Crises and the Competence Divide? Conclusion 3 Classifying EU Competences: German Constitutional Lessons? Introduction German Competence Federalism: Dual Federalism European Federalism: Co-operative Federalism (with a Dualist Streak) Conclusion(s) Part II Areas of Complementary, Sharedand Exclusive EU Competence 4 Exclusive Member State Competences—Is There Such a Thing? Introduction Retained Competences Reserved Competences The Lisbon Treaty Reform: New Guarantees for Exclusive Member State Competence? Conclusion 5 The Competence to Create an Internal Market: Conceptual Poverty and Unbalanced Interests Introduction The Legal Basis of Internal Market Competences The Conceptual Basis of the Internal Market The Most Perfect Market: Full Harmonisation or Managed Diversity? What Place for National Interests in Internal Market Competences? Establishing a Disembedded Market Subsidiarity and Proportionality Conclusion 6 Monetary Policy: An Exclusive Competence Only in Name? Introduction Competence for Eurozone Monetary Policy and Related Policy Areas The Fuzzy Boundary between EU Competence for 'Economic' and 'Monetary' Policy Is Monetary Policy a Genuinely Exclusive Competence? Conclusion 7 The EU's Exclusive Competence in Competition Law Introduction Substantive Overlaps and the Legitimacy of Intervention in EU Competition Law The Relationship with National Competition Law and NCAs Conclusions 8 EU External Competence—Rationales for Exclusivity Introduction: Foundations for External Competence Exclusivity and Express External Powers Exclusivity and the External Dimension of Internal Policies Conclusion 9 Competence, Human Rights, and Asylum: What Price Mutual Recognition? Competence Clarity in the Post-Lisbon Landscape: An Unachievable Objective? Respect for Fundamental Rights: From Constraining Force to Policy Migration and Asylum: Selected Developments Fundamental Rights and Mutual Recognition: NS and its Aftermath Spill-over and Retreat Conclusions Part III Practical Perspectives 10 The Exclusive Competences of the European Union: Some Random Jottings Introduction: Laeken, Lisbon and the Rebranding of Conferral Why Classify Competences? Exclusive EU Competences Have the Laeken Goals Been Achieved? Conclusion: A Question Perpetually Arising? 11 The Lisbon Treaty's Competence Arrangement Viewed from European Commission Practice Exclusive Competence Shared Competences 'Supporting' Competence Conclusion 12 The Lisbon Treaty's Competence Arrangement Viewed by the European Parliament The Principle of Conferral The Principle of Subsidiarity The Principle of Proportionality 13 The Institutional Politics of Objective Choice: Competence as a Framework for Argumentation Rules of the Game Legal Basis in the Political Process: Crystallisation of a Compromise Legal Basis in Competence Litigation Conclusions Part IV Critical Reflections on Legitimacyand Proposals for Reform 14 Integration through Soft Law: No Competence Needed? Juridical and Bio-Power in the Realm of Soft Law Introduction From Juridical to 'Bio' Power Bio-Power and Soft Law The Power of 'Better' Regulation Bio-Power and the 'Competence Conundrum' 15 Refining the Division of Competences in the EU: National Discretion in EU Legislation Introduction National Discretion: A First Encounter Towards a Typology of National Discretion National Discretion: Indispensable to the Competences Discourse? Conclusion 16 The Shifting Powers of the European Parliament: Democratic Legitimacy and the Competences of the European Union General Parliament's Mission Supervision Legislation Budget Consultation and Appointments Final Remarks 17 De-constitutionalisation of European Law: The Re-empowerment of Democratic Political Choice Democratic Aspirations The Asymmetric Impact of Excessive Constitutionalisation 18 Restating the Problem of Competence Creep, Tackling Harmonisation by Stealth and Reinstating the Legislator Introduction The Various Manifestations of Harmonisation by Stealth The Democratic Deficit of Harmonisation by Stealth Solutions to Harmonisation by Stealth Final Thoughts Index Présentation de l'éditeur : "The issue of competence division is of fundamental importance as it reflects the `power bargain' struck between the Member States and their Union, determining the limits of the authority of the EU as well as the limits of the authority of the Member States. It defines the nature of the EU as a polity, as well as the identity of the Member States. After over six years since the entry into force of the Lisbon Treaty, it is high time to take stock of whether the reforms that were adopted to make the Union's system of division of competences between the EU Member States clearer, more coherent, and better at containing European integration, have been successful. This book asks whether `the competence problem' has finally been solved. Given the fundamental importance of this question, this publication will be of interest to a wide audience, from constitutional and substantive EU law scholars to practitioners in the EU institutions and EU legal practice more generally." "The issue of competence division is of fundamental importance as it reflects the 'power bargain' struck between the Member States and their Union, determining the limits of the authority of the EU as well as the limits of the authority of the Member States. It defines the nature of the EU as a polity, as well as the identity of the Member States. After over six years since the entry into force of the Lisbon Treaty, it is high time to take stock of whether the reforms that were adopted to make the Union's system of division of competences between the EU Member States clearer, more coherent, and better at containing European integration, have been successful. This book asks whether 'the competence problem' has finally been solved. Given the fundamental importance of this question, this publication will be of interest to a wide audience, from constitutional and substantive EU law scholars to practitioners in the EU institutions and EU legal practice more generally."--Bloomsbury Publishing.