Opinion of the Committee of the Regions on "A better division and definition of powers in the European Union"
Date: 2002-11-21
Institutions: Committee on Constitutional Affairs, European Committee of the Regions
Subjects: EU competence, EU legal system, administrative transparency, division of powers, principle of subsidiarity, supervisory power

C 73/64

EN

Official Journal of the European Union

26.3.2003

Opinion of the Committee of the Regions on ‘A better division and definition of powers in the
European Union’

THE COMMITTEE OF THE REGIONS,

(2003/C 73/16)

having regard to the decision of its Bureau of 14 May 2002, under the fifth paragraph of Article 265 of
the Treaty establishing the European Community, to instruct the Commission for Constitutional Affairs
and European Governance to draw up an opinion on this subject;

having regard to the presidency conclusions of the Laeken European Council of 14 and 15 December
2001, and in particular the Laeken Declaration on the future of the European Union;

having regard to the Charter of Fundamental Rights of the European Union, and in particular its preamble;

having regard to the contributions of the European Convention, particularly documents CONV 47/02,
CONV 50/02 and CONV 162/02 on the division of powers and legal instruments;

having regard to its contribution to the European Convention (CdR 127/2002 fin) adopted on 4 July
2002;

having regard to its opinion of 13 March 2002 on the draft report of the European Parliament on the
division of powers between the European Union and the Member States (CdR 466/2001 fin) (1);

having regard to the draft opinion (CdR 119/2002 rev. 2) adopted by the Commission for Constitutional
Affairs and European Governance on 4 October 2002 (Rapporteur: Mr Olivas Martínez (E-EPP), President
of the regional government of Valencia;

whereas there is an urgent need for public understanding of who does what in Europe and a legitimate
demand for transparency and simpler procedures;

whereas the Community must recognise rights already acquired at national level by local and regional
governments;

whereas the EU must provide for flexibility in the legislative phase in order to ensure that the diversity of
the Member States and their regional and local authorities is respected;

whereas the CoR must be given an active role in monitoring respect for the subsidiarity principle,

adopted the following opinion by a majority at its 47th plenary session held on 20 and 21 November
2002 (meeting of 21 November).

1.2.
considers that the objective of improving economic
and social cohesion should be reinforced by making it a
fundamental aim of the Treaty, and that territorial cohesion
should be a further such aim. If we do not make a concerted
effort to address the increased diversity that enlargement will
bring, political and economic integration, the Union’s prime
aim, will be threatened.

1. The Committee of the Regions’ views

The Committee of the Regions

1.1.
believes that the Union’s current objectives, as reflected
in the Treaty, must not only be maintained, but should be
supplemented and strengthened. In this regard, it must be
explicitly stated that safeguarding the principles of freedom,
democracy and solidarity, respect
for human rights and
freedoms and the rule of law, together with
fundamental
linguistic and territorial diversity, and
respect for cultural,
promoting these values in the rest of the world is an objective
of the Union.

( 1) OJ C 192, 12.8.2002, p. 31.

believes that responsibility for achieving these objec-
1.3.
tives should be shared between the Union institutions and
the
national, regional and local authorities;

to this end,

26.3.2003

EN

Official Journal of the European Union

C 73/65

principle of cooperation, which is implicit in Article 10 of the
EC Treaty (1), should be explicitly stated in the new treaty.

1.4.
believes there is a need to seek ways of increasing
consistency between the Union’s different policies on the basis
of its fundamental horizontal objectives, including, inter alia,
economic and social cohesion, environmental conservation
and equal opportunities, with due respect for the subsidiarity
principle. The obligation for all Union policies to serve these
horizontal objectives must be enshrined in the Treaties to
enable the Court of Justice of the European Communities to
monitor compliance.

1.5.
believes that the division of competence within the
European Union must be based on the fundamental principle
that any competence not assigned to the Union remains the
responsibility of the Member States. This principle is already
incorporated in the Treaties, although only the EC Treaty refers
to it explicitly.

1.6.
reiterates its view that the principles of subsidiarity
and proportionality, as enshrined in the Treaties, must be
supplemented by provisions
to guarantee constitutional
respect for the competence of the regions and local authorities.
In the interests of transparency and correct implementation of
the subsidiarity principle, the procedure for adopting decisions
on the basis of these clauses should also be modified.

1.9.
stresses its belief that the Union should be given all the
powers necessary to achieve its objectives and the most
appropriate instruments to carry out its tasks (CdR 127/2002
fin, point 3.2), and suggests that the division into three pillars
on the basis of subject area be abandoned in favour of a unified
approach, but that a case-by-case policy be retained for
legislative procedures and institutional competences. Indeed,
the scope of the instruments at the Union’s disposal must vary
according to the intended aim and the type of competence —
exclusive, shared, supplementary or coordinating powers —
concerned.

1.10.
in Article 2 of the EU Treaty to be strengthened as follows:

reiterates its desire for the political objectives set out

— the establishment of a genuine common foreign and
security policy, inter alia by granting the Union exclusive
competences in this field, in order to give it a greater role
on the international stage; in this regard the integration
of trade, development and humanitarian aid policy is
essential;

— the creation of an area of freedom, security and justice
for European citizens, on the basis of
the Charter
of Fundamental Rights, which is the basic instrument
underpinning rights. Community immigration and asyl-
um policy must become a genuinely integrated policy
taking into account respect for human rights, preservation
of the Union’s social cohesion, the need to combat
illegal immigration, and concern for the development of
immigrants’ countries of origin;

1.7.
notes that the lack of a hierarchy and clear structure as
to the type of laws to be used and non-compliance with the
principles of subsidiarity and proportionality (2), which seek to
bring decision-making closer to the citizens via the Member
States and local and regional entities, are among the main
problems impeding an appropriate division of responsibilities.

— the consolidation of the European social and economic
model, in which social and territorial cohesion, a high
level of social security and a better quality of life, far
from being incompatible with economic progress, are a
prerequisite for each region’s competitiveness;

1.8.
considers that the principle of the allocation of com-
petences should be consolidated, and that there is thus a need
for a clear system for the allocation of competences in a way
which can be easily understood by both the public and political
players at grassroots level. It would also seem desirable to
further clarify the allocation of legislative, executive and
supervisory powers within the EU. The application of prin-
ciples such as separation, balance and cooperation between
powers must be defined in the new constitutional framework.

— a sustainable development policy, with better coordi-
nation of environmental, social and economic policies
(CdR 127/2002 fin).

1.11.
judges that on one hand a transfer of new com-
petences and a handing back of powers in the context of a
better division of powers must be envisaged, as stated in
previous opinions (3). However, it certainly seems to be the
case that the citizens want the Union to have more instruments
with which to achieve some of its objectives, in particular
achieving an area of
freedom, security and justice and
reaffirming the identity of the Union in the international arena.

( 1) ‘Member States shall

take all appropriate measures, whether
general or particular, to ensure fulfilment of the obligations arising
out of this Treaty or resulting from action taken by the institutions
of the Community. They shall facilitate the achievement of the
Community’s tasks. They shall abstain from any measure which
could jeopardise the attainment of the objectives of this Treaty.’

( 2) Preasidium Note 47/02, 15 May 2002.

(3) See CoR opinion on the Draft Report of the European Parliament
on the division of powers between the European Union and the
Member States (CdR 466/2001 fin).

C 73/66

EN

Official Journal of the European Union

26.3.2003

1.12.
respect the subsidiarity principle.

considers that any division of competence must

notes that the competences assigned to the Union are
1.13.
mainly legislative in nature, and are based on the objectives to
be achieved. However, except where there is a justified
exception, national, regional and local authorities are largely
responsible for implementing and applying legislation. Indeed,
even in the specific cases where the Treaties do grant exclusive
competence in certain areas, final implementation is normally
the responsibility of national, regional or local authorities.

it

In this context,

1.14.
considers that respect for the principle of subsidiarity
also judges the strength of the legal instrument chosen and
that a priori the most appropriate legal instruments, therefore,
are framework laws and directives.
is
desirable to reduce the number of procedures and adopt
terminology corresponding to everyday words used in the
Member States which are most familiar to the citizen, that is
to say,
law and framework law. More detailed regulations
should be used only where these are necessary to achieve the
objective. Once legislation has been drawn up, the subsidiarity
principle should be borne in mind when determining the level
of government competent to implement it. Moreover, where
basic law assigns competence for implementation to the
European institutions, the explanatory statement must clearly
mention the obligation to respect the subsidiarity principle.

considers, however, that in practice neither Article 5
1.15.
nor the protocol annexed to the Treaty of Amsterdam have
been implemented in an entirely satisfactory manner,
for
reasons ranging from incorrect political interpretation on the
part of the Commission, which has, on occasion, interpreted
the concept of exclusive competence somewhat broadly, to
the vague wording of Article 5 itself. Without question, it has
been the regional and local authorities which have suffered
most from the failure to apply the subsidiarity principle fully.

notes that the problem of monitoring implementation
1.16.
of the subsidiarity and proportionality principles and the
division of competences has provoked a debate on the merits
of either a preventive political control procedure or ex-post
judicial control by the European Court of Justice. The CoR
favours the judicial option, as it would enable it to play an
active role in the appeal procedure. Political control of
European legislation must go in the first place to the European
institutions, but the CoR also recognises the role played by
national parliaments and competent regional parliaments in
the control of the action of their governments at the European
Council.

considers, however,

1.17.
that creation of an ex-post
judicial appeal procedure would require a new referral pro-
cedure with suspensive effect, to be initiated prior to entry into
force of a legislative act. The European Commission, a
significant minority of the Council, the European Parliament
and the Committee of the Regions would all be able to initiate
the procedure. The judicial ruling would have to be delivered
within 30 days and would constitute the final decision on
whether or not the subsidiarity principle, the principle of
proportionality and the allocation of powers had been applied
correctly.

1.18.
considers that clauses such as Articles 95 and 308 of
the EC Treaty will have to be made more specific in terms of
the subsidiarity principle if the European Union is to continue
reacting in a flexible manner to new challenges. This will help
safeguard the momentum of
the integration process and
provide for the possibility of future changes in the allocation
of competences between the Union and national authorities.

2. The Committee of the Regions’ recommendations

The Committee of the Regions

Transparency and clarification of competence

2.1.
believes that the principle of cooperation between all
levels of government must be a fundamental principle of the
Union’s operation in the future as an expression of the
shared responsibility for attaining the objectives of European
integration.

believes that Article 5 of the EC Treaty should make an
(regional and local)

2.2.
explicit reference to the subnational
entities.

2.3.
considers that the co-decision procedure must apply in
all cases, in order to ensure that the European Parliament is
involved, and that in all cases of obligatory consultation of the
Committee of
it
is desirable that the CoR is involved downstream in the
procedures.

the Regions as foreseen in the Treaty,

further believes that its action should be reinforced by
2.4.
a binding instrument with greater force than a normal opinion,
such as a right of suspensive veto or the power to propose
legislative initiatives limited to relevant areas that fall within
the competence of regional and local authorities and on
which consultation of the CoR is obligatory, particularly the
multiannual reforms of European Union policies such as the
structural funds or transport policy.

26.3.2003

EN

Official Journal of the European Union

C 73/67

proposes, regarding the classification of competences,

2.5.
that a clear distinction be made between:

— exclusive competences of

the Union, primarily the

responsibility of the European Union institutions,

— shared competences, where responsibility is

shared
between the Union and the Member States
(and,
depending on the internal organisation, between national,
regional and local authorities),

— secondary competences, where the Union’s role is con-
fined to supplementing or supporting action by the
Member States, adopting supporting measures or coordi-
nating the Member States’ actions. On this front, there
appears to be a need for greater clarity concerning the
limits of Union action in order to ensure respect for the
prerogatives of the Member States and of the subnational
levels in the spheres of education, training, youth, civil
protection, culture, sport, health, industry and tourism.
When, in an area relevant to secondary competences,
Member States deem it necessary to use ‘open coordi-
nation’, this must be accompanied by proper parliamen-
tary control and involve sub-national levels which have
executive competences in this area.

2.6.
believes that the current division of competences based
on the objectives to be achieved should be maintained, and
that the Union should be given all the instruments necessary
to achieve them. It must, therefore, have at its disposal a
different range of instruments from that based on an allocation
of competences by subject. This method has been key to
Community integration, and should continue to be so, pro-
vided that the principles of subsidiarity and proportionality
are respected whenever it is used.

considers, nonetheless,

that a clearer division of
2.7.
responsibilities cannot be synonymous with producing a
catalogue or list of competences by policy area, since this
would be an illusion of transparency which would be likely to
mislead citizens, since reality is very difficult to compart-
mentalise, with regulation of one area always impacting on
others and the fact that in practice the vast majority of powers
are shared in one way or another (irrespective of whether they
are defined as concurrent, complementary, etc.

Implementation and compliance:
system

framework laws and a control

2.8.
principle,

considers that

in accordance with the subsidiarity
framework legislation should be the preferred

Brussels, 21 November 2002.

option,
to allow Member States and, where appropriate,
regional and local authorities, to tailor legislation to their own
specific features.

2.9.
considers that correct implementation of the subsidiar-
ity principle is crucial for the protection of the principles of
local and regional autonomy and, consequently, that the Treaty
should recognise the fundamental role played by local and
regional authorities in bringing European decisions closer to
the public.

believes that any consideration of the division of
2.10.
tasks between the Union and the Member States must also
encompass the question of the implementation of com-
petences; considers, consequently, that if the European Com-
mission is asked to adopt implementing rules in areas where
sub-national decision-making levels have executive com-
petences, representatives of local and regional administration
should be involved in the comitology procedures.

proposes that

the CoR be given a key role in
2.11.
monitoring application of
is the
European Union body responsible for the institutional rep-
resentation of local and regional authorities.

this principle, since it

2.12.
supports the creation of an ad-hoc chamber within
the European Court of Justice responsible for monitoring
application of the subsidiarity and proportionality principles.

The principle of related actions and the flexibility clause

2.13.
emphasises the importance of ensuring that the
principle of related actions is applied, i.e. a commitment that
any allocation of tasks to regional and local authorities must
be accompanied by the financial resources needed to carry
them out.

shares the view that there is a continued need for the
2.14.
flexibility clauses contained in Articles 95 and 308 of the EC
Treaty, which must in any event have the favourable opinion
of the European Parliament, and require consultation of the
CoR where there would be a strong territorial impact.

instructs its President to forward this opinion to the
2.15.
European Convention,
the
the Presidency of
Council, the European Parliament and the European Com-
mission.

the Union,

The President

of the Committee of the Regions

Albert BORE