Competence and Legal Basis
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All EU legislation must be based on an appropriate treaty provision.

Art. 5 EC - Community must act within powers conferred by Treaty.

Art.7(1) EC - Each institution must act within powers conferred by Treaty.

The absence of an adequate legal base in the Treaty means that MS "retain competence" and the Community is not competent to act.  In theory, any act adopted in areas where the Community is not competent may be annulled as an invalid trespass onto national competence - Advocate General Jacobs Parliament v. Council (Lomé Convention) [1994].

Specific Legal Basis Provisions

e.g.       Art. 34 EC - powers to set up and maintain Common Agricultural Policy.

Art. 175 EC - power to protect environment.

General Legal Basis Provisions

Much more important is the Art. 308 EC "catch-all" provision, under which the Council can, acting unanimously on a proposal from the Commission and consultation from the EP, act to attain a Community objective in the course of the operation of the common market.  Art. 308 EC is, however, a residuary provision, to which recourse should be made in the absence of more specific enabling provisions - Advocate-General La Pergola.

In addition, the provisions of the treaties often give power to act towards one specific community objective.  This can be more wide-ranging and controversial than it first seems.

Arts. 94, 95 EC give powers to act to ensure the functioning of the common and internal market.  This has given a basis for quality control legislation, e.g. soft toys Directive 88/378 etc. to equalise competitive conditions (create a "level playing field").

There can be disagreement over whether legislation is based on the appropriate treaty provision.  In the Working Time Directive Case, the UK wanted a different procedure to have been used so they could use their veto.  They argued, therefore, that the provision used (health and safety) was inappropriate.  On the facts, the argument was rejected.

General legal basis provisions are important because they give a potentially very wide-ranging competence to EU institutions.  This is especially so as the ECJ has accepted that an explicit grant of power includes an implied grant of the powers reasonably necessary for the exercise of that explicit power.  So the exercise of an objective or a function of the EU implies the powers reasonably necessary to achieve it.  This was confirmed in Germany v. Commission [1987].

The Community is not omni-competent but, if there is an established EC policy, e.g. labour market, the Community can invoke Art. 308 EC.

MS retain exclusive competence in areas where there is no connection with EU law.  In Kremzow v. Austria [1997], for example, the ECJ was asked to comment on an imprisonment stemming from an unfair trial (ECHR right breached) because it affected the plaintiff's freedom of movement.  ECJ said no jurisdiction.

BUT, the EU is dynamic and extends its areas of competence over time, e.g. view of environmental legislation.  Note the important role of the ECJ in determining competence.  In the early 1960s, "the Member States have limited their sovereign rights, albeit within limited fields" (Costa v. ENEL; Van Gend en Loos); by the early 1990s, "the States have limited their sovereign rights, in ever wider fields" (Opinion 1/91 on the draft EEA Agreement).

Competence

In practice, challenges to EU acts are unlikely to arise where power is given to Council to decide in accordance with a procedure requiring unanimity as in Arts. 94 and 308 EC.  MS are more likely to challenge the competence of the EU if acts have been passed following QMV - e.g. Working Time Directive Case.  Note Usher's argument that EC competence is politically determined - "The scope of the Community's competence is ultimately what the Council of Ministers choose to make it".

Other institutions, such as the EP or Commission, may mount a challenge to increase their contribution to the legislative process and thus affect the substance of policy - e.g. Commission v. Council (Titanium Dioxide).

Other Notes in this Category

1. Competence and Legal Basis
2. Court-Made Sources of EU Law
3. Flexible/Variable Geometry
4. Fundamental Rights
5. General Legislative Processes
6. Legislation
7. Subsidiarity

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