WHAT DOES REPATRIATION OF EU POWERS OR COMPETENCES MEAN ?

Citizens often hold expectations of the European Union that are not always fulfilled. And vice versa they sometimes have the impression that the Union takes on too much in areas where its involvement is not always essential. Thus the important thing is to clarify, simplify and adjust the division of competence between the Union and the Member States in the light of the new challenges facing the Union. This can lead both to restoring tasks to the Member States and to assigning new missions to the Union, or to the extension of existing powers, while constantly bearing in mind the equality of the Member States and their mutual solidarity.

There exists a wide-ranging interpretation of the word “Repatriation”. “Repatriation” is a broad term that potentially encompasses varying degrees of action, from returning individual EU laws to the Member States’ level at one end of the scale and regaining power over an entire policy area at the other.

Powers and competences

The terms powers and competences are used, often interchangeably, to denote who has the responsibility – the EU, the Member States or both - for making decisions under the EU Treaties. The Member States confer competence on the EU to act and the EU can only act within the bounds of the EU Treaties, as only they provide the EU with the ‘competence’ to act in a specific area. Articles 2-6 TFEU set out the categories and areas of EU competence Exclusive EU competence Article 2(1) and (2) TFEU state: 1. Where 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 acts of the Union. 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. The Member States shall exercise their competence again to the extent that the Union has decided to cease exercising its competence. The areas in which the EU has exclusive competence are:

- Customs union

- Competition rules for the functioning of the internal market

- Monetary policy, for the Member States which have adopted the euro

- Conservation of marine biological resources under the common fisheries policy

- Common commercial policy

The EU has exclusive competence to conclude international agreements where such conclusion is provided for in an EU legislative act, or is necessary to enable the EU to exercise its internal competence. The EU may conclude international agreements, which are binding on the EU and Member States:

- where the Treaties so provide

- where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, an objective referred to in the Treaties

- where it is provided for in a legally binding Union act

- where it is likely to affect common rules or alter their scope.

Shared competence

These are areas of law-making where the exercise of EU competence does not exclude the exercise of legislative powers by Member States, as long as they respect the primacy of EU law and do not enact laws which conflict with existing EC law and principles. The idea that Member States’ competence should be restricted once the EU has acted is established in Court of Justice case law. Under the EU treaties, where the EU is given a competence which is not exclusive or supporting, it is shared. The main areas of shared competence are:

- internal market

- social policy, for the aspects defined in this Treaty

- economic, social and territorial cohesion

- agriculture and fisheries, excluding the conservation of marine biological resources

- environment

- consumer protection

- transport

- trans-European networks

- energy

- area of freedom, security and justice

- common safety concerns in public health matters, for the aspects defined in this Treaty.

In these areas Member States have competence to adopt legislation to the extent that the Union has not exercised its competence, so for example, an environment or energy agreement with a third party would be possible, given that the EU does not have exclusive internal competence in this area. In other areas the EU is restricted to taking action to support, co-ordinate or supplement the action of the Member States. These areas are:

- protection and improvement of human health

- industry

- culture

- tourism

 - education, vocational training

- youth and sport

- civil protection

 - administrative co-operation.

Protocol on shared competence

A Protocol (25) on the Exercise of Shared Competence states that “when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the act of the Union in question and therefore does not cover the whole area”. It is, however, still possible for EU measures to cover the whole policy area, subject to shared competence, provided that the EU can do so under the relevant Treaty provisions.

Declaration on the delimitation of competences

Further clarification is provided by a Declaration 18 annexed to the TFEU on “the delimitation of competences”, which confirms that “competences not conferred upon the Union in the Treaties remain with the Member States”, and continues: When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.

In other words, the Member States can regain their competence to act in areas where EU legislation has been repealed or where there is no EU measure. However, critics view this arrangement as a back door to EU exclusive competence, giving the EU a right of first refusal with regard to competence, while Member States would only be able to do what the Union decided not to do.

Can EU powers or competences be repatriated?

There is a view that the EU’s acquis communautaire is sacrosanct and cannot be amended. The EU Glossary compiled by the European Commission defines the acquis as follows: The acquis communautaire or Community patrimony is the body of common rights and obligations which bind all the Member States together within the European Union. It is founded principally on the Treaty of Rome and the instruments that supplement it (the Single European Act, the Treaty on European Union etc.), plus the wide range of secondary legislation enacted under them. The acquis communautaire relates mainly to the single market and the four freedoms inherent in it (freedom of movement for goods, persons, capital and services), the common policies which underpin it (agriculture, trade, competition, transport and others) and measures to support the least-favoured regions and categories of the population. The Union has committed itself to maintaining the acquis communautaire in its entirety and developing it further. 

Exemptions and derogations from the legal framework constituted by the acquis communautaire are granted only in exceptional circumstances and are limited in scope. Other terms used to describe the acquis are “Community patrimony" or "Community heritage". 

Although existing Member States are obliged to respect the acquis, it is a dynamic concept and constantly evolving. Treaty amendment has formed and will continue to form part of the evolution of the EU. It ought to follow that a Treaty amendment to remove a competence from the EU is as much an evolutionary development of the acquis as adding a competence – it is just that the former has not really happened yet. Court of Justice judges interpret EU law in the light of Treaty amendment in their rulings, and so the process of change and evolution continues, even though Court of Justice decisions themselves cannot be amended.

The ‘occupied field doctrine’

Many believe that the doctrine of the “occupied field” prevents the repatriation of powers in areas in which the EU has law-making competence. When this happens, Member States lose their competence in this area, even if the EU has not yet legislated. Thus, if the EU is given the power under the Treaties to take legislative action in a particular area, this inhibits Member States from acting, in case their laws are subsequently found to be incompatible with EU law (pre-emption). The EU’s power to act in that area is therefore guaranteed forever. Under Lisbon this ‘doctrine’ is somewhat relaxed in areas of shared competence. Member States can continue to act to the extent that the EU has not acted and the EU may also cede power back to the Member States. If the EU retreats from an ‘occupied field’, the Member States may then ‘reoccupy’ it.

Subsidiarity

The EU Treaty as amended by the Lisbon Treaty gave considerably more weight to the principles of subsidiarity and proportionality, and granted for the first time an ability to repatriate competences from the EU to the Member States. The Treaties also for the first time now stipulate areas of exclusive or shared competence in decision-making, making it clearer who has the power to do what. Even where the Union has competence under the Treaties, there is a possibility that that competence may be returned to national authorities if the Member States agree to do so. This is because the Member States confer powers on the EU (Article 7 TFEU). In practice, and for political rather than legal reasons, it might be very difficult to do so. The Lisbon Treaty Declaration (18) clarified the principle that competences can be repatriated to Member States, particularly on the grounds of subsidiarity or proportionality: The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 241 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties, including either to increase or to reduce the competences conferred on the Union in the said Treaties. In theory, therefore, EU competence can be returned to the Member States or even to an individual Member State if all the EU Member States so decide. In practice, for political and/or practical reasons it is unlikely that certain competences would be returned to Member States. Where common policies have been established (e.g. the Common Agricultural Policy, the Common Fisheries Policy, the Common Commercial Policy), or where a principle or policy is considered to be fundamental to the functioning of the EU (e.g. the internal market), it is difficult to imagine achieving the unanimous agreement of the Member States to allow repatriation. 

How could EU powers be repatriated?

At EU level Repatriating EU competences would in all likelihood require Treaty change(s) using the Ordinary Legislative Procedure: an intergovernmental conference, probably preceded by a convention, and national ratification by all 28 Member States. It is not clear whether the Simplified Revision Procedure (SRP) could be used in this scenario. The SRP can only be used for changes to Part 3 of the Treaty on internal policies and Article 48 TEU stipulates that it must not be used to increase the EU’s competences. However, it is silent as to whether it could be used to decrease EU competences.

How would repatriation be achieved?

a)Legally

There are a number of options that a Member State Government could pursue, but they can be divided broadly into three categories:

 - Repatriation without changes to the EU Treaties but a renegotiation of individual Directives

- Repatriation with EU Treaty changes

- Repatriation through unilateral action by a Member State Government or Parliament.

 The two first options would be playing ‘within the rules’, subject to the agreement of other EU countries, while the unilateral ‘nuclear’ option would have potentially far-reaching and unpredictable political consequences.

b) Politically

It is clear that any attempt to repatriate powers will be a huge challenge, given that this will require agreement from 28 other national governments and that a comprehensive approach will require renegotiation of the EU Treaties. It is also clear that if a Member State Government is to successfully repatriate powers, it needs to have leverage with its EU partners and be willing to spend a lot of political capital. In addition, it may have to make other concessions in return.  The EU often works by consensus, and if a member state – and one of the biggest in particular – sets its mind on a certain task, it is very difficult for the rest of the club to ignore it. Winning in Europe is rarely achieved through a big bang strategy, but through agenda setting and endless repetition.