Konstadinides, T.; (2006) Towards a clearer delimitation of internal European Community competences. Doctoral thesis , University of London.

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Abstract

This thesis is a study of the distribution of competences between the main actors in European integration: namely the European Community and the Member States. It aims to evaluate the place of the competence provisions in the current Treaty structure as well as within the Treaty Establishing a Constitution for Europe. This task first involves a legal-technical exercise based on a textual interpretation of different categories of competences within the above-mentioned sources. Second, it involves a review of the relevant Court of Justice case law with regard to those competences. The study of both has led the author to consider how the evolution of Community competence has given rise to the phenomenon of 'competence' creep'. It is argued that Member States contend that the Community assumes more powers than those it possesses. Thus, the thesis provides an insight into concerns about 'creeping competence'. Certain types of situations are identified under the title of 'creeping competence'. These include, the adoption of unjustified or undesired EC legislation under qualified majority voting the expansion of the Community's competence under Article 308 EC and finally the adoption of EC legislation that goes beyond the scope of Article 5 EC (principle of attribution of powers). The thesis will provide certain examples to underline the problem. It will take account of the use of the flexibility provisions of Article 95 EC and 308 EC with regard to the regulation of health and the Community's accession to the European Convention of Human Rights (ECHR), which are treated as case studies in the thesis. In the context of a problematic system of competences, the author will consider the assumptions made in the Nice and Laeken IGCs as well as the European Convention for a clearer distribution of competence and assess the role of the principle of subsidiarity as a tool against the expansion of Community competence into new policy areas. It is argued that the reform of subsidiarity will enhance EU legitimacy and enlarge the role of national legislatures in the Union. The reconstruction of subsidiarity procedures may remedy the tensions in the current system of competence and provide limits to the degree of EU intervention. Besides tidying up competences between the EU and Member States, European Constitutionalisation hides a question of political finality and further integration. How can the EU establish an effective and democratically legitimate governance beyond the Nation State Via a European Constitution or through alternative methods This question is particularly important in the current context following the French and Dutch rejection of the EU Constitutional Treaty. The chances of the EU Constitution being revived in the near future are slim, since it is unlikely that either France or Holland will soon hold another referendum. Thus, either a period of reflection shall be allowed to Member States or alternative routes to integration shall be considered. The thesis concludes with the hypothesis that as the EU Constitutional Treaty does not provide the answers to most of the questions posed by the Nice and the Laeken European Councils, enhanced cooperation may be utilised as a future method of governance and Fischer's 'Core Europe' as a tool capable of a redistribution of competences inside the Union. But then again the European Union needs to avoid a new iron curtain descending between those Member States that represent the 'core' and those that constitute the 'periphery'.

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