Competence: clarity, conferral, containment and consideration

Abstract:

The division of competence between the European Union (EU) and the Member States was one of the central issues identified in the Declaration attached to the Nice Treaty as being in need of clarification. This was affirmed in the Laeken Declaration and the matter was addressed in detail by the Convention on the Future of Europe. This paper begins with an analysis of the nature of the competence problem, and then considers the objectives of reform set out in the Laeken Declaration. This is followed by detailed analysis of the provisions in the draft Constitutional Treaty concerned with competences.

The fate of the Constitutional Treaty is uncertain at the time of writing. It is however unlikely that the issue of competences will disappear from the EU agenda, and the approach embodied in the draft Constitution will in all probability shape future discourse on this issue, even if the broader constitutional project proves unsuccessful.