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An investigation into the problems that have arisen with regard the use of the general powers enshrined in Article 94, 95 and the residual power in 308 EC in relation to the development of the European Community's competence.

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Introduction

In the following paper an investigation will be made into the problems that have arisen with regard the use of the general powers enshrined in Article 94, 95 and the residual power in 308 EC in relation to the development of the European Community's competence. Introduction By virtue of Article 1 of the Maastricht Treaty on the European Union: 'The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this treaty' The European Communities as referred to above are of paramount importance in the structure and development of the Union, as it is through their relevant Treaties that the legal basis has been provided, for the implementation of policy legislation. Although comprehensive in nature, the Treaties do contain general and residuary powers to enact policy legislation that has not been specifically provided for, in particular Article 94, 95 and 308 of the EC Treaty.1 Through the general use of these provisions, has surfaced a 'statal anxiety over the creeping competences of the European Union' which has ultimately led to an in depth review of the delimitation of Community powers.2 In the following paper, the widening powers of the European Community will be outlined and elaborated on in order to provide a relevant background to the present problem concerning the delimitation of Community competence. The origin of European Community competence The European Union gains its competence primarily through Treaty provisions, which confer exclusive power to its institutions to deal with policy matters on behalf of the member states. This procedure, otherwise known as the principle of competence d'attribution is enshrined in Article 5 of the EC Treaty which provides: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. As outlined in the above provision, the Community must act within the limits of its powers in order for a Community action to be legal. ...read more.

Middle

The ECJ insisted that Article 308 could not 'serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole'40. This statement, although meant as reassurance to the ever prominent 'concern, in particular amongst the Lander, that this article was used by the Council as a basis for surreptitious erosion of member state powers'41, does not conclusively allay the general fears of some of the member states 'who suspect the Community of being a Triffid, quietly gaining strength in order to gobble up everything that gives substance to our sense of having national identities'42. This uncertainty enveloping the issue of the Communities competence has been addressed in the German Constitutional Court where in the Brunner43 opinion, where it was warned that on the interpretation of a Treaty provision if it was given a wide meaning which meant that it enlarged the powers of the community then the 'exercise of those powers would not produce consequences binding within the German legal order'44. This view seems to be partially echoed by the H�jesteret in its Maastricht judgement45. Clearer delimitation of Community powers The extensive use of the harmonising powers contained in the afore mentioned articles and the preceding jurisprudential changes within the ECJ and national courts has prompted many calls for a clearer delimitation of powers. The competence system has by some been labelled as having 'flexible and plastic qualities' due to its lack of significant qualitative limits and democratic control.46 This desire for clarification and possibly reform has been one of the main focuses in the post-Nice and post Laeken agenda . In the Laeken Declaration the question was posed of whether or not 'Articles 95 and 308 of the treaty be reviewed... in light of the "acquis jurisprudential"?'47 It is thought by some that this reference to 'aquis jurisprudential' has been prompted by the courts findings of ultra vires on two recent occasions; namely in opinion 2/94 and the tobacco Directive case. ...read more.

Conclusion

pg 6 57 Usher, J.A. 'EC Institutions and Legislation', Longman, London, 1998, pg 99 58 De Bu�rca.G. 'Setting Constitutional Limits to EU Competence', (2001/02) pg.2 59 Borzel, T.A and Risse, T. 'The Post Nice agenda of the EU - What's the problem, how to deal with it and what to avoid', (2001) pg 2 60 De Bu�rca.G. 'Setting Constitutional Limits to EU Competence', (2001/02) pg. 13 61 Bausili, A.V. 'Rethinking the Methods of Dividing and Exercising Powers in the EU:Reforming Subsidiarity and National Parliaments,' (2002) pg.7 62 De Bu�rca.G. 'Setting Constitutional Limits to EU Competence', (2001/02) pg. 13 63 Tolias, Y.S. 'Has the problem Concerning the Delimitation of the Community's Competence been Resolved since the Maastricht Judgement of the Bundesverfassungsgericht?',(to be published in EBLR in 2002) pg 13 64 Borzel, T.A and Risse, T. 'The Post Nice agenda of the EU - What's the problem, how to deal with it and what to avoid', (2001) 65 Borzel, T.A and Risse, T. 'The Post Nice agenda of the EU - What's the problem, how to deal with it and what to avoid', (2001) pg 2 66 Borzel, T.A and Risse, T. 'The Post Nice agenda of the EU - What's the problem, how to deal with it and what to avoid', (2001) pg 2 67 De Bu�rca.G and De Witte, B. 'The Delimitation of Powers between the EU and its Members States', (2002) pg. 3 68 De Bu�rca.G and De Witte, B. 'The Delimitation of Powers between the EU and its Members States', (2002) pg. 3 69 Tolias, Y.S. 'Has the problem Concerning the Delimitation of the Community's Competence been Resolved since the Maastricht Judgement of the Bundesverfassungsgericht?',(to be published in EBLR in 2002) pg 13 70 Lenearts, K and Desomer, M. 'Bricks for a Constitutional Treaty of the European Union: values, objectives and means', 27 (2002) E.L.Rev. 394 71 Bausili, A.V. 'Rethinking the Methods of Dividing and Exercising Powers in the EU:Reforming Subsidiarity and National Parliaments,' (2002) pg.6 72 Dashwood, A. 'The limits of the European Community Powers', 21 (1996) E.L.Rev. 113. ...read more.

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