6.2 Constitutional Principles of the European Union

6.2 Constitutional Principles of the European Union

Core Principle: The European Union possesses no inherent sovereign authority (Kompetenz-Kompetenz). Its legal capacity is strictly derived, delimited, and regulated by constitutional principles codified in the Treaties and developed through landmark jurisprudence of the Court of Justice of the European Union (CJEU).

For AD5 candidates taking the EPSO competition, questions on Union competences, subsidiarity mechanics, legal doctrines, and Article 7 proceedings are core material for the EU knowledge test. Mastery requires distinguishing between exclusive, shared, and supporting competences, navigating Protocol No. 2 early warning thresholds, and understanding the precise conditions governing direct effect and primacy.

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The Principle of Conferral (Article 5(2) TEU)

The foundational rule governing the scope of all European Union activity is the Principle of Conferral (principe d'attribution):

• Codification: Article 5(2) TEU specifies: "Under the principle of conferral, 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. Competences not conferred upon the Union in the Treaties remain with the Member States."
• Presumption of National Competence: Reaffirmed by Article 4(1) TEU, competences not conferred on the Union remain with the Member States. Article 4(2) TEU adds that national security remains the sole responsibility of each Member State, and Article 168(7) TFEU leaves the organisation and delivery of health services to the Member States.
• The Legal Basis Requirement: Every legally binding act adopted by EU institutions must cite a specific treaty article as its legal basis (base juridique). The legal basis determines the required legislative procedure (Ordinary vs Special), the voting rule in the Council (QMV vs unanimity), and the extent of Parliamentary involvement. A measure adopted on an erroneous legal basis is voidable under Article 263 TFEU for lack of competence or infringement of the Treaties.

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Taxonomy of Competences (Articles 2–6 TFEU)

Before Lisbon, treaty competences were uncoordinated across overlapping articles. The Treaty of Lisbon codified Union competences into three distinct, mutually exclusive categories under Articles 3, 4, and 6 TFEU:

1. Exclusive Competences (Article 3 TFEU)

Under Article 2(1) TFEU, when the Treaties confer exclusive competence on the Union in a specific area, only the Union may legislate and adopt legally binding acts. Member States may legislate only if explicitly empowered by the Union or for the implementation of Union acts.

Article 3(1) TFEU establishes an exhaustive list of five exclusive areas:

1. Customs Union;
2. Establishment of competition rules necessary for the functioning of the internal market;
3. Monetary policy for Member States whose currency is the euro;
4. Conservation of marine biological resources under the Common Fisheries Policy (CFP);
5. Common Commercial Policy (CCP) (external trade).

Under Article 3(2) TFEU, the Union also holds exclusive competence to conclude an international agreement when its conclusion is provided for in a legislative act, is necessary to exercise its internal competence, or may affect common rules or alter their scope (ERTA doctrine, Case 22/70).

2. Shared Competences (Article 4 TFEU)

Under Article 2(2) TFEU, in areas of shared competence, both the Union and Member States may legislate and adopt legally binding acts. However, Member States may exercise their competence only to the extent that the Union has not exercised its competence.

• The Doctrine of Pre-emption (effet de préemption): Once the EU legislates in a shared field, it occupies the field. National competence is preempted, and Member States can no longer adopt conflicting domestic laws or separate international agreements.
• Scope of Shared Competence (Article 4(2) TFEU): Internal market; social policy (aspects defined in the Treaty); economic, social, and territorial cohesion; agriculture and fisheries (excluding marine biological resources); environment; consumer protection; transport; trans-European networks (TENs); energy; Area of Freedom, Security and Justice (AFSJ); common safety concerns in public health.
• Shared Competences Without Pre-emption: In research, technological development, space (Art. 4(3) TFEU), development cooperation, and humanitarian aid (Art. 4(4) TFEU), the Union's exercise of competence does not prevent Member States from exercising theirs.

3. Supporting, Coordinating, and Complementary Competences (Article 6 TFEU)

Under Article 2(5) TFEU, the Union may intervene to support, coordinate, or supplement Member State actions in specific sectors without superseding national competence. Crucially, Union acts adopted in these areas cannot entail harmonization of Member States' laws or regulations.

Article 6 TFEU enumerates seven supporting areas:

1. Protection and improvement of human health;
2. Industry;
3. Culture;
4. Tourism;
5. Education, vocational training, youth, and sport;
6. Civil protection;
7. Administrative cooperation.

Special Competence Regimes & The Flexibility Clause

• Economic and Employment Coordination (Article 5 TFEU): Member States coordinate economic and employment policies within arrangements defined by the Council, notably through the European Semester and Broad Economic Policy Guidelines (BEPGs).
• Common Foreign and Security Policy (CFSP, Article 2(4) TFEU): Governed by specific constitutional rules under Title V TEU, characterized by intergovernmental decision-making and the explicit exclusion of legislative acts.
• The Flexibility Clause (Article 352 TFEU): If action proves necessary to attain a treaty objective within the framework of policies defined in the Treaties, but the Treaties have not provided the necessary powers, the Council may adopt the appropriate measures acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament. Article 352 cannot serve as a basis for harmonizing national legislation where the Treaties exclude it, nor can it be used in CFSP.

Subsidiarity & The Early Warning System (Article 5(3) TEU)

The Principle of Subsidiarity regulates the exercise of competences, ensuring decisions are taken as closely as possible to the citizen.

Subsidiarity Threshold Conditions

Under Article 5(3) TEU, subsidiarity applies exclusively to non-exclusive competences (shared and supporting competences). In areas of exclusive EU competence, subsidiarity is legally inapplicable because Member States have permanently transferred legislative power to the Union.

In non-exclusive areas, the Union shall act only if and in so far as:

1. Negative Condition (National Insufficiency): The objectives cannot be sufficiently achieved by the Member States, either at central level or at regional and local level;
2. Positive Condition (Union Added Value): The objectives can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Protocol No. 2 & The Early Warning System (EWS)

Protocol No. 2 annexed to the Treaties establishes an Early Warning System (EWS) empowering national parliaments to police subsidiarity before draft EU legislation is enacted:

• Scrutiny Window: National parliaments have eight weeks from the date of transmission of a draft legislative act in all official EU languages to issue a reasoned opinion (avis motivé) stating why the proposal breaches subsidiarity.
• Voting Allocation: Each national parliament possesses two votes. In bicameral systems, each chamber holds one vote; in unicameral systems, the single chamber holds two votes (across 27 Member States, there are 54 total votes).

The Card Procedures: Yellow and Orange Cards

Historical Context: The Yellow Card has been triggered only three times in EU history: the Monti II Regulation on the right to strike (2012, withdrawn by the Commission), the European Public Prosecutor's Office (EPPO) Regulation (2013, maintained by the Commission), and the revision of the Posted Workers Directive (2016, maintained by the Commission). The Orange Card has never been successfully triggered.

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The Principle of Proportionality (Article 5(4) TEU)

Under Article 5(4) TEU, "the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."

Unlike subsidiarity, proportionality applies across all categories of EU competence, including exclusive competences. It regulates both legislative substance and procedural instrument choice:

1. Choice of Instrument: Directives are preferred over regulations where harmonization can be achieved via national transposition; non-binding recommendations or framework standards are preferred where uniform prescription is unnecessary.
2. Burden Minimization: Financial and administrative burdens on economic operators, local authorities, and citizens must be minimized and proportional to the policy objective.
3. The Judicial Three-Stage Test: When assessing proportionality, the CJEU applies a rigorous three-step inquiry:
   • Suitability (aptitude): Is the measure capable of achieving the legitimate objective pursued?
   • Necessity (nécessité): Is the measure the least restrictive and least burdensome among equally effective alternatives?
   • Proportionality Stricto Sensu (proportionnalité au sens strict): Are the burdens imposed excessive or disproportionate in relation to the benefits secured?

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Foundational Judicial Doctrines: Primacy & Direct Effect

The Treaties do not contain an explicit constitutional supremacy clause. Instead, the legal autonomy of the EU rests on foundational jurisprudence established by the Court of Justice of the European Union.

Primacy / Supremacy of EU Law

• Case 6/64 Costa v ENEL (1964): The landmark ruling establishing that EU law takes absolute precedence over conflicting domestic law. The Court ruled that by creating a Community of unlimited duration, having its own institutions, legal capacity, and real powers stemming from a limitation of sovereignty, Member States limited their sovereign rights and created a body of law which binds both their nationals and themselves. A subsequent unilateral national measure cannot prevail over Union law.
• Case 11/70 Internationale Handelsgesellschaft (1970): Primacy extends over all forms of domestic law, including national constitutional law and fundamental rights provisions codified in national constitutions.
• Case 106/77 Simmenthal (1978): Every national court must immediately apply EU law in its entirety and protect the rights it confers, setting aside any conflicting national statute on its own authority, whether enacted prior to or subsequent to the EU rule, without waiting for that national law to be repealed or declared unconstitutional by a national constitutional court.
• Lisbon Codification: Primacy is enshrined in Declaration No. 17 concerning primacy, annexed to the Final Act of the Lisbon Treaty, affirming that according to settled case-law of the CJEU, the Treaties and Union law take precedence over the law of Member States.

Direct Effect (effet direct)

• Case 26/62 Van Gend en Loos (1963): Established that the European Union constitutes a "new legal order of international law for the benefit of which the states have limited their sovereign rights... independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage."
• The Direct Effect Criteria: To produce direct effect, a treaty provision or EU measure must be:
  1. Sufficiently clear and precise;
  2. Unconditional (not subject to any qualification, condition, or reservation);
  3. Legally complete, requiring no further implementing measures by Union or national authorities.
• Vertical vs Horizontal Direct Effect:
  • Vertical Direct Effect: Enforceable by an individual or economic operator against the Member State, public authorities, or emanations of the state.
  • Horizontal Direct Effect: Enforceable by an individual against another private individual or corporation.

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Article 2 TEU Values & The Article 7 Sanctions Mechanism

Article 2 TEU defines the constitutional identity of the European Union: "The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

The Article 7 TEU Enforcement Architecture

To safeguard these foundational values against systemic erosion within Member States, Article 7 TEU provides a two-tiered institutional mechanism:

Article 7(1) TEU: Preventive Mechanism
Trigger: Clear risk of a serious breach of Art. 2 values
Initiators: 1/3 of Member States, European Parliament, or European Commission
Decision: Council acts by a 4/5 majority after consent of the European Parliament
Outcome: Formal recommendations addressed to the Member State
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Article 7(2) TEU: Determination Mechanism
Trigger: Existence of a serious and persistent breach of Art. 2 values
Initiators: 1/3 of Member States or European Commission (Parliament cannot initiate)
Decision: European Council acts by UNANIMITY (excluding the Member State) after consent of EP
Outcome: Formal determination of systemic breach
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Article 7(3) TEU: Sanctions Mechanism
Trigger: Enacted following determination under Art. 7(2)
Decision: Council acts by Qualified Majority (QMV)
Outcome: Suspension of certain membership rights, including Council voting rights

Rule of Law Conditionality Regulation (Regulation 2020/2092)

Because the unanimity requirement in the European Council under Article 7(2) TEU creates a mutual protection pact between allied Member States (preventing determination of a breach), the Union enacted Regulation (EU, Euratom) 2020/2092 on a general regime of conditionality for the protection of the Union budget.

Upheld by the Court of Justice on 16 February 2022 in Case C-156/21 (Hungary v Parliament and Council) and Case C-157/21 (Poland v Parliament and Council), this mechanism permits the Council, acting by Qualified Majority on a proposal from the Commission, to suspend, reduce or freeze EU budget payments and commitments where breaches of the principles of the rule of law affect or seriously risk affecting the sound financial management of the EU budget in a sufficiently direct manner. It was first used in December 2022, when the Council suspended about €6.3 billion of cohesion-policy commitments for Hungary.