Table Of ContentAzoulai110913OUK.indb 2 1/17/2014 6:29:58 PM
THE QUESTION OF COMPETENCE
IN THE EUROPEAN UNION
Azoulai110913OUK.indb 1 1/17/2014 6:29:58 PM
Azoulai110913OUK.indb 2 1/17/2014 6:29:58 PM
The Question of
Competence in the
European Union
Edited by
LOÏC AZOULAI
Azoulai110913OUK.indb 3 1/17/2014 6:29:58 PM
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© The several contributors 2014
The moral rights of the authors have been asserted
First Edition published in 2014
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2013950753
ISBN 978–0–19–870522–2
Printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Azoulai110913OUK.indb 4 1/17/2014 6:29:59 PM
Contents
Table of Cases ix
List of Abbreviations xix
List of Contributors xxi
Introduction: The Question of Competence 1
Loïc Azoulai
I. The Structure of the European Legal Argument and the
Competence Problem 3
II. The European Union as a Federal Order of Competences? 10
III. Competence and Membership 15
I. THE FEDERAL MODEL
1. The Allocation of Competences in a Federation—A General
Introduction 19
Olivier Beaud
Introduction 19
I. The Conventional Conception of the Allocation of
Competences: a Technical and State-centred Conception 23
II. Another Way of Looking at the Allocation of Competences
in a Federation 30
Concluding Remark 37
2. Theoretical Deflation: The EU Order of Competences and
Power-conferring Norms Theory 39
Guillaume Tusseau
I. A Metalinguistic Analysis of the Expression ‘The EU as
a Federal Order of Competences’ 39
II. A New Methodological Start 42
III. A Theory of Power-conferring Norms 44
IV. Identifying Types of Power-conferring Norms in the EU
Legal Order 46
V. Identifying Types of Relationships between Power-conferring
Norms in the EU Legal Order 54
Concluding Remarks 61
Azoulai110913OUK.indb 5 1/17/2014 6:29:59 PM
vi Contents
II. THE ALLOCATION OF COMPETENCES
IN EU PRACTICE
3. EU External Relations: Unity and Conferral of Powers 65
Marise Cremona
Introduction 65
I. An Evolution in Thinking about EU External Competence 67
II. Give and Take in EU Practice 74
III. Unity and the Scope of Application of EU Law 80
IV. Internal and External Policies and the Union Interest 82
Concluding Remarks 84
4. The Allocation of Economic Policy Competences in the
European Union 86
Roland Bieber
Introduction 86
I. General Economic Policy: an Allocation of Competences
sui generis 87
II. Monetary Policy: an Exclusive albeit Divided Competence 96
Conclusion 99
5. Legislative and Executive Competences in Competition Law 101
Giorgio Monti
Introduction 101
I. The Enforcement of Competition Law in the EU 103
II. Legislative Competence 104
III. Executive Competence 114
IV. National Reactions 119
Conclusion 123
6. The EU as a Federal Order of Competences and the Private Law 125
Hans-W. Micklitz
Prologue or Why Private Law 125
I. European Regulatory Private Law and Traditional National
Private Law: some Clarifications 130
II. Scope of Competence in Private Law: from Market Bound to
Justice Bound? 132
III. Limits of Competence: the Uncoupling of European
Private Law from National Private Law and Possible
Counter-reactions 141
IV. Intensity: the Relationship with Task and Function 148
Concluding Remarks 151
Azoulai110913OUK.indb 6 1/17/2014 6:29:59 PM
Contents vii
III. THE EUROPEAN COURT OF JUSTICE AND
THE QUESTION OF COMPETENCE
7. ECJ Doctrines on Competences 155
Christiaan Timmermans
Introductory Remark and Conclusions 155
I. Which Approaches? 156
II. What about Pre-emption? 159
III. And what about the Lisbon Treaty? 160
Final Remark 164
8. EU Law and Retained Powers of Member States 168
Lena Boucon
Introduction 168
I. A Specific Legal Framework 171
II. Implications 187
Conclusion 192
9. The Protection of Fundamental Rights and the Allocation of
Competences in the EU: A Clash of Constitutional Logics 193
Edouard Dubout
Introduction 193
I. The Protection of Fundamental Rights and the Definition of
the Union’s Competence 196
II. The Protection of Fundamental Rights and the Exercise of
National Competences 204
Conclusion 211
IV. POLITICAL AND LEGAL LIMITS
TO EU COMPETENCES
10. Limits to the Union’s ‘Internal Market’ Competence(s):
Constitutional Comparisons 215
Robert Schütze
Introduction 215
I. The ‘Internal Market’ Competence in the United States 216
II. The Internal Market Competence(s) of the European Union 223
III. Comparisons and Conclusions 232
11. Subsidiarity as a Procedural Safeguard of Federalism 234
Xavier Groussot and Sanja Bogojević
Introduction 234
I. Political Competence Test in the Post-Lisbon Era 236
II. Impact Assessments as a Competence Test 242
Azoulai110913OUK.indb 7 1/17/2014 6:29:59 PM
viii Contents
III. Subsidiarity and Adjudicative Federalism 244
IV. Federal Proportionality and Process Federalism 249
Conclusion: One Vision of Federal Safeguards? 251
12. The Respect for National Constitutional Identity in the European
Legal Space: An Approach to Federalism as Constitutionalism 253
François-Xavier Millet
Introduction 253
I. From ‘Who Should Hold a Competence?’ to ‘How to Exercise
a Competence?’ 255
II. A New Kind of Federalism in the European Union 266
Reference List 277
Index 295
Azoulai110913OUK.indb 8 1/17/2014 6:29:59 PM
