Transcript Shared Competences? - IUCN Academy of Environmental Law

faculteit rechtsgeleerdheid
bestuursrecht & bestuurskunde
Datum 03.02.2009
Shared Responsibilities?
Shared Competences?
faculteit rechtsgeleerdheid
bestuursrecht & bestuurskunde
“Who do I
call if I
want to
call
Europe?”
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Lisbon Treaty
Article 3(5) EU
In its relations with the wider world, the Union shall
uphold and promote its values and interests and
contribute to the protection of its citizens. It shall
contribute to peace, security, the sustainable
development of the Earth, solidarity and mutual
respect among peoples, free and fair trade, eradication
of poverty and the protection of human rights, in
particular the rights of the child, as well as to the strict
observance and the development of international law,
including respect for the principles of the United Nations
Charter.
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Lisbon Treaty
Article 191 FT (ex Article 174 TEC):
1. Union policy on the environment shall contribute to
pursuit of the following objectives:
 preserving, protecting and improving the quality of
the environment,
 protecting human health,
 prudent and rational utilisation of natural resources,
 promoting measures at international level to deal with
regional or worldwide environmental problems, and in
particular combating climate change.
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Thank you Danmark?
Jens-Peter Bonde (former MEP):
 “This little supplement is a Danish initiative. It is a
useful political signal. One could claim that the
provision itself does not change anything, since
climate change will clearly be one of the global
environmental problems of the future. It can also be
foreseen that this supplementary objective may be
used, for example, to introduce common EU taxes on,
for example, CO2 emissions and thus let in provision
for EU taxes through the back door.”
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Europa.eu
Does the Treaty of Lisbon preserve what the EU has
achieved for the environment? What about climate
change?
 Climate change is among the biggest environmental,
social and economic challenges currently facing
mankind. With the Treaty of Lisbon, combating
climate change on an international level becomes a
specific objective of EU environmental policy. The
Treaty of Lisbon adds the support of international
action for fighting climate change to the list of
objectives defining environmental policy at EU level.
In so doing, the Treaty clearly recognises that the EU
has a leading role to play on the world stage in this
area.
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Energy and Lisbon
Article 194
1. In the context of the establishment and functioning of
the internal market and with regard for the need to
preserve and improve the environment, Union
policy on energy shall aim, in a spirit of solidarity
between Member States, to:
a) ensure the functioning of the energy market;
b) ensure security of energy supply in the Union;
c) promote energy efficiency and energy saving and
the development of new and renewable forms of
energy; and
d) promote the interconnection of energy networks.
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Integration
Article 11 (ex Article 6 TEC)
 Environmental protection requirements must
be integrated into the definition and
implementation of the Union policies and
activities, in particular with a view to
promoting sustainable development.
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Lisbon, continued
>Mr Dehaene MEP: "The Lisbon Treaty will for
the first time give the EU legislative power in
the field of energy and climate change […].
Here lies a unique opportunity for the European
Commission to develop a strong and coherent
legislative programme […] that addresses
these issues which are so important to
European citizens and which need a crossborder solution. It is an exceptional chance to
show Europeans what Europe can achieve for
them."
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However
> The environment is one of the spheres of competence shared
between the Union and the Member States.
> Article 2(2) FT: “When the Treaties confer on the Union a
competence shared with the Member States in a specific area, the
Union and the Member States may legislate and adopt legally
binding acts in that area. The Member States shall exercise
their competence to the extent that the Union has not
exercised its competence. The Member States shall again
exercise their competence to the extent that the Union has
decided to cease exercising its competence.”
> Article 4(2) FT: “environment” + “energy” are shared
competences
> And not exclusive Article 2(1) FT: “1. When the Treaties confer
on the Union exclusive competence in a specific area, only the
Union may legislate and adopt legally binding acts, the Member
States being able to do so themselves only if so empowered by
the Union or for the implementation of Union acts.
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Lisbon continued
Article 191 FT (ex Article 174 TEC):
4. Within their respective spheres of
competence, the Union and the Member
States shall cooperate with third countries
and with the competent international
organisations. The arrangements for Union
cooperation may be the subject of
agreements between the Union and the third
parties concerned.
The previous subparagraph shall be without
prejudice to Member States' competence to
negotiate in international bodies and to
conclude international agreements.
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Mixed Agreements
1. Complex negotating and coordination procedures
(Article 218 FT, ex Article 300 TEC)
2. Voting procedures

Art. 22(2) Kyoto protocol: “Regional economic
integration organizations, in matters within their
competence, shall exercise their right to vote with a
number of votes equal to the number of their
member States that are Parties to this Protocol. Such
an organization shall not exercise its right to vote if
any of its member States exercises its right, and vice
versa.”
3. Division of power clauses
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Division of Powers
The European Community declares that, in accordance with the Treaty
establishing the European Community, and in particular Article
175(1) thereof, it is competent to enter into international
agreements, and to implement the obligations resulting therefrom,
which contribute to the pursuit of the following objectives:
 preserving, protecting and improving the quality of the
environment;
 protecting human health;
 prudent and rational utilisation of natural resources;
 promoting measures at international level to deal with regional or
world wide environmental problems.
The European Community declares that its quantified emission
reduction commitment under the Protocol will be fulfilled through
action by the Community and its Member States within the
respective competence of each and that it has already adopted legal
instruments, binding on its Member States, covering matters
governed by the Protocol.
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Some concrete problem areas
> The external trade aspects? Common Commercial
Policy is an exclusive competence; possible relevance
of the Rotterdam Convention case?
> Financial burdens for the MS and the International
Rubber Agreement (Opinion 1/78)
> Implications of Article 193 (ex Article 176 TEC): “The
protective measures adopted […] shall not prevent any
Member State from maintaining or introducing more
stringent protective measures.”
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Subsidiarity Reversed?
Article 5(3) EU
Under the principle of subsidiarity, in areas
which do not fall within its exclusive
competence, the Union shall act only if and in
so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member
States, either at central level or at regional and
local level, but can rather, by reason of the
scale or effects of the proposed action, be
better achieved at Union level.
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Why not?
With respect to worldwide environmental
problems and under the principle of reversed
subsidiarity the Member States shall act only if
and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the
European Union.
Or: if the EU can do it alone, they should do it
alone