Opinion procedure 2/15

Treaty on European Union

31.Article 5 TEU establishes the principle of conferral, according to which competences not conferred upon the European Union by the Treaties remain with the Member States.(11) Article 5(2) TEU provides that ‘… the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’ and that ‘competences not conferred upon the Union in the Treaties remain with the Member States’.

32.Article 21(2) TEU refers to the principles to be respected and objectives to be pursued by the European Union in defining and pursuing common policies and actions. The same principles and objectives apply to the development and implementation of the European Union’s external action and the external aspects of its other policies (Article 21(3) TEU). Those objectives include ‘encourag[ing] the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade’ (Article 21(2)(e) TEU) and ‘help[ing] develop international measures to preserve and improve the quality of the environment and the sustainable development management of global natural resources, in order to ensure sustainable development’ (Article 21(2)(f) TEU).

Treaty on the Functioning of the European Union

33.Article 2 TFEU provides, in particular:

‘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.

2.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.^[(12)^] The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

…’

34.The sole article in Protocol No25(13) on the exercise of shared competence states: ‘With reference to Article 2(2) [TFEU] on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.’

35.Article 3(1) TFEU describes the areas where the European Union has exclusive competence, including:

‘(a)customs union;

…

(d)the conservation of marine biological resources under the common fisheries policy;

(e)common commercial policy’.

36.Pursuant to Article 3(2) TFEU, the European Union also enjoys exclusive competence to conclude an international agreement ‘… when its conclusion is provided for in a legislative act of the Union [first ground] or is necessary to enable the Union to exercise its internal competence [second ground], or in so far as its conclusion may affect common rules or alter their scope [third ground]’.

37.Article 4 TFEU concerns shared competences and states:

‘1.The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.^[(14)^]

2.Shared competence between the Union and the Member States applies in the following principal areas:

(a)internal market;

(b)social policy, for the aspects defined in this Treaty;

…

(d)agriculture and fisheries, excluding the conservation of marine biological resources;

(e)environment;

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(g)transport;

…

(i)energy;

…’

38.According to Article 9 TFEU, which is part of the provisions having general application, in defining and implementing Union policies and activities, the European Union is to ‘… take into account requirements linked to the promotion of a high level of employment [and] the guarantee of adequate social protection…’.

39.Article 11 TFEU (also part of the provisions having general application) states that ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’.

40.Part Five, Title I, of the TFEU, which comprises Articles 205 to 207 TFEU, contains the general provisions on the European Union’s external action.

41.Article 206 TFEU states that ‘by establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions in international trade and on foreign direct investment, and the lowering of customs and other barriers’.

42.Article 207(1) TFEU provides:

‘The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action.’

43.According to Article 207(5) TFEU, ‘the negotiation and conclusion of international agreements in the field of transport shall be subject to Title VI of Part Three ?comprising the provisions regarding the common transport policy? and to Article 218’.

44.Article 207(6) TFEU states that ‘the exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation’.

45.Article 216 TFEU sets out when the European Union may conclude an international agreement with one or more third countries. In accordance with Article 216(1) TFEU, it may do so ‘… where the Treaties so provide [first ground] or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties [second ground], or is provided for in a legally binding Union act [third ground] or is likely to affect common rules or alter their scope [fourth ground]’. Article 216(2) TFEU provides that such agreements are binding upon the EU institutions and on the Member States.

46.Article 218 TFEU sets out the procedural rules governing, inter alia, the negotiation, signature and conclusion of international agreements:

‘1.Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

2.The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3.The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations…

4.The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

5.The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6.The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

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11.A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.’