Part II
Governmental Powers

7. Legislative Powers: Competence and Procedures  

Introduction

Each society needs common rules and mechanisms for their production. The concept of legislation is indeed central to all modern societies. It refers to the making of laws (legis).

But what is ‘legislation’? Two competing conceptions of legislation have emerged in modern constitutional thought. A parliamentary or procedural conception of legislation is tied to our modern understanding of who should be in charge of the legislative function. Legislation is here formally defined as every legal act adopted according to the (parliamentary) legislative procedure. This procedural conception of legislation has traditionally shaped British constitutional thought. By contrast, a second conception defines what legislation should be, that is: legal rules with general application. This material or functional conception of legislation has shaped continental constitutional thought. A material definition of legislation underpins phrases like ‘delegated legislation’ adopted by the executive.

Which of these traditions has informed European constitutionalism? The Union has traditionally followed a material definition. However, with the Lisbon Treaty, a formal definition of legislative power has now been adopted. The Treaty on the Functioning of the European Union constitutionally defines:
Legal acts adopted by legislative procedure shall constitute legislative acts.But what are the ‘legislative’ powers of the European Union? And what types of procedures are legislative procedures? This chapter answers these questions in four sections. Section 1 analyses the scope of the Union’s legislative competences. This scope is limited, as the Union is not a sovereign State. Section 2 analyses the different categories of Union competences. Depending on what competence category is involved, the Union will enjoy distinct degrees of legislative power. Section 3 analyses the identity of the Union legislator. Various legislative procedures thereby determine how the Union must exercise its ‘legislative’ competences. Section 4 finally scrutinises the principle of subsidiarity as a constitutional principle that controls the exercise of the Union’s shared legislative powers.

The Scope of Union Competences

  1. Teleological Interpretation
  2. The General Competences of the Union
    1. The Internal Market Competence: Article 114
    2. The Residual Competence: Article 352

Categories of Union Competences

  1. Exclusive Competences: Article 3
  2. Shared Competences: Article 4
    1. General Considerations
    2. Minimum Harmonisation Competences
  3. Coordinating Competences: Article 5
  4. Complementary Competences: Article 6

Legislative Procedures: Ordinary and Special

  1. The ‘Ordinary’ Legislative Procedure
    1. Constitutional Text: Formal Procedure
    2. Constitutional Practice: Informal Trilogues
  2. The ‘Special’ Legislative Procedures

The Principle of Subsidiarity

  1. Subsidiarity as a Political Safeguard of Federalism
  2. Subsidiarity as a Judicial Safeguard of Federalism
  1. Shorter Oxford English Dictionary. ↩
  2. For the British parliamentary definition of legislation, see A. V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982), esp. chs. I and II. ↩
  3. For an excellent overview, see H. Schneider, Gesetzgebung (C. F. Müller, 1982). ↩
  4. R. Schütze, ‘The Morphology of Legislative Power in the European Community: Legal
    Instruments and the Federal Division of Powers’ (2006) 25 YEL 91. ↩
  5. Art. 289(3) TFEU (emphasis added). ↩