FIDE 2016 Questionnaire

FIDE Congress

2016 – Budapest

Theme

Division of competences and regulatory powers between the EU and the Member States

General Rapporteur: Dr. Jacques Ziller, Full professor of EU Law at the University of Pavia (Italy)

The topic of division of competences has at least three dimensions, which will be explored on the  basis of

the questionnaire.

First, the issue of division of powers requires a good understanding of the legal reach of the principle of

conferral and of the conceptual and operational differences between EU competences and the scope of

the Treaties. It seems that the way in which those concepts are understood varies from one country to

another, not only regarding the political discourse, but also with regard to case law and scholarship: it is

necessary to understand how these variations with regard to treaty concepts as understood and applied by

the EU institutions and in particular by the Court of Justice are likely to lead to problems, especially

in the context of the so called ‘dialogue between judges’ and as part of the scholarly exchanges between

different countries and between legal disciplines within a country (EU law, administrative law, civil law,

constitutional law, criminal law, etc. as well as legal theory).

Second, it is desirable to review the perceptions in Member States and institutions with regard to the current

balance of powers and responsibilities between the Union and Member States, between exclusive and shared

competences, and between the latter and coordinating, supporting or supplementing competences – i.e.

the balance as resulting from the Treaty of Lisbon, in institutional practice and in the case law of the Court.

Third, it is necessary to explore the legal issues arising from the type of executive federalism that is being

practiced by the Union, in which implementing powers comes mainly under Member States even if when

the Union exercises its legislative competences – be they exclusive, shared, or coordinating, supporting or

supplementing competences. Specifically there is a need to study the problems resulting from the coexistence

of actions of the institutions and bodies of the Union – especially of the Commission – and actions of

the authorities of the Member States in the implementation of the law and policies of the Union. The division

of functions and actions between EU authorities and central and decentralized authorities of Member States

will be studied in particular in the field of EU budget funds – amongst others structural funds.

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Rapporteurs are requested to try to answer all numbered questions. Further questions that are embedded

in the commentary should help better understanding the numbered questions. When the questionnaire refers

to ‘your country’s scholarship’ it may include literature in other languages than your own one, especially

English language literature that currently used in your country.

1 The division of competences between the European Union and its Member States

1.1 Principle of conferral and scope of European Union law

1.1.1 The perception of the principle of conferral

The traditional expression of the principle of conferral in public international law and in the EU law is not

identical in the various languages, even if the content of the concept is unitary. By way of example, whilst

the Latin languages use the expression attribution and the English language uses the word conferral,

the traditional German expression is begrenzte Einzelermächtigung (literally individualized and limited

authorization). For non-specialists, even in the case of those who are lawyers but not specialists in public

international public or European Union law, the German expression can seem much more restrictive than

the English or French version, even if in the reality of the law there are no differences.

Rapporteurs are invited to respond to the following questions.

I-1. Does the formulation of the principle of conferral at Article 5 (2) TEU correspond to the classic formulation

of the principle in public international law in your language?

Article 5(2) TEU: “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”.

Remember that the different linguistic versions of this provision are the result of the work of the Council’s

lawyer-linguists when they translated the draft Constitutional Treaty adopted by the European Convention in July

2003. If the expression in a given language is different from the classic formulation of the principle in public

international law utilized in your country, it would be useful to verify if that is due to a specific request of your

government, or that of a Member State of which the language in question is the official language.

I-2. Has the expression of the principle of conferral introduced in Article 5 (1) TEU by the Treaty of Lisbon been

the subject of commentaries in your country?

It would be useful to verify whether the explicit insertion of the principle of conferral in the treaties is

perceived as a novelty, or rather as the simple reaffirmation of a principle considered as inherent

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to the Community treaties since the beginning. A comparison of the textbooks of Community law and law of

the European Union prior to and after the Treaty of Lisbon could be useful to this effect, similarly

to a verification of the commentaries of the treaties possibly published in the language of your country.

It is particularly useful also to verify the literature of legal scholarship of your country on the draft

Constitutional Treaty of the European Convention of 2002-2003, on the Constitutional Treaty of 2004, and

on the Treaty of Lisbon. If the jurisprudence of your country refers to the principle of conferral, it is

particularly useful to verify if this jurisprudence may be taken into account by the courts and scholarship as a

direct or indirect consequence of the formulation of the principle of conferral in the Treaty of Lisbon or

the Constitutional Treaty. The declarations of the political class concerning the principle of conferral also

merit an analysis.

I-3. Has the jurisprudence developed a doctrine of ultra vires concerning the exercise of the competences of

the European Union?

It is well known that the German Federal Constitutional Court in particular has developed a doctrine of ultra

vires, reserving to itself the right to check where applicable where it would consider an act of a European

Union institution (including the judgments of the Court of Justice) as being contrary to the principle of

conferral. It is useful from this point of view to take into account the developments devoted to this subject by

Advocate General Cruz Villalon in his submissions of 14 January 2015 in the Gauweiler case (C-62/14,

points 16 to 18, 33-34, 37, 45-46 and above all 51-53 as well as 63).

Is there a similar or comparable doctrine in your country? Does this jurisprudence use the expression ultra

vires, which comes from English law? Does this jurisprudence make reference to the principle of ultra vires

in the law of international organizations, or rather to a pre-existing national doctrine or to a doctrine in

the process of being developed relative to the compatibility of treaties with regard to constitutional law?

If in your country there is a doctrine of ultra vires of institutions of the European Union, how is it expressed?

Does it distinguish between manifest violations of the principle of conferral and simple violations? Is a

reference for preliminary ruling to the Court of Justice considered as an indispensable preliminary to

the exercise of judicial review of competences of the European Union by national courts?

Are there examples in your country of courts having declared that an act of the  European Union is contrary

to the conferral of competences in the treaties?

I-4. In the legal literature and in the declarations of politicians of your country, are there criticisms of

the European Union concerning a violation of the division of competences?

It is useful not only to distinguish between legal scholarship and politicians’ declarations, but also between

the specialist scholarship in Community law and EU law, and the scholarship in other branches of law.

Is the criticism formulated with regard to the European Union in a general fashion or with regard to one or

more specific institutions? Is the criticism supported by concrete examples, and if yes, does the presentation

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of these examples reveal a good, or on the contrary a bad understanding of the existing division of

competences and/or powers and the role of the institutions criticized?

1.1.2 The distinction between the domains of competences of the European Union and the field of

application of European Union law

Does it occur that the critiques with regard to the Court of Justice disclose a poor understanding of

the notions of competence and the scope of application of EU law? In a typical fashion, the Court is being

criticized for interfering in the exercise by a Member State of competences which do not appear

in the treaties as shared competences – for example higher education, for which there only exists a

supporting competence – when the Court recalls the consequences of the principle of non-discrimination in

terms of freedom of movement (still the example of higher education).

Rapporteurs are invited to respond to the following question:

I-5. Is the distinction between the fields of competences of the European Union and the scope of application of

EU law understood and explained in the scientific literature and in the practice in your country?

What is the qualitative and quantitative importance in your country of the confusion between competences

and scope of application?

Does scholarship, and notably the textbooks of Community law and EU law, deal with the conceptual and

practical differences between competences of the European Union and the scope of application of EU law? If

yes, does it do so about a specific jurisprudence and commentaries that it generates, or does it do so in a

didactic manner in the exposition of the system of competences of the EU? Were there discussions in your

country concerning the formulation of the first sentence of Article 51 (1) of the Charter (“and to the Member

States only when they are implementing Union law”) before and after the judgment of the Court of 26

February 2013 in the Åkerberg Fransson case (C-617/10)?

1.2 Principles that apply to the division and to the exercise of competences

1.2.1 Perception and application of the principle of subsidiarity

Article 5 TEU is drafted in a fashion that is altogether clear and repeats that “The  limits of Union

competences are governed by the principle of conferral. The use of Union competences is governed by

the principles of subsidiarity and proportionality”.

Nonetheless, since the introduction of the general principle of subsidiarity in Community law by the treaty of

Maastricht, a large number of politicians and practitioners, and a not negligible part of scholarship,

make reference and continue to refer to the principle of subsidiarity to evaluate the division of competences

between the Union and its Member States and not only the implementation of these competences by

the European Union. The drafting of the Constitutional Treaty, then of the Treaty of Lisbon, had amongst

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other the purpose of clarifying what ought to have seemed clear upon reading Article 3B TCE as it resulted

from the Maastricht Treaty.

Rapporteurs are invited to respond to the following questions.

I-6. Is the principle of subsidiarity invoked in your country as a principle to be applied to the division of

competences between the EU and its Member States by legal scholarship, by politicians or by

the jurisprudence?

It is useful not only to distinguish between legal scholarship and politicians’ declarations, but also between

the specialist scholarship of Community and EU law and scholarship of other branches of law. It is also

useful to verify whether it concerns declarations, publications or judicial decisions prior or subsequent to

the Treaty of Lisbon or to the Constitutional Treaty of 2004.

I-7. Has the division of competences generated reasoned opinions in your country in the context of

the subsidiarity control procedure?

In the context of the subsidiarity control procedure of Protocol 2, do the parliamentary assemblies confine

themselves strictly to the application of the principle of subsidiarity, or do they also give their opinion

concerning the appropriateness of the legal basis chosen in terms of competences attributed to the EU? Do

the opinions also make declarations concerning respect for the principle of proportionality?

1.2.2 Exclusive competences and preemption

Article 2 (2) TFEU was drafted by the European Convention to bring an end if possible to the debate

on the exact extent of exclusive competences of the EU. It establishes rules concerning the exercise of

competences by the European Union and its Member States by distinguishing the situation on one part of

exclusive competences of the EU, where the Member States can only legislate “if so empowered by the

Union or for the implementation of Union acts” and on the other part shared competences, where

the principle of preemption applies, to which paragraph 2 of Declaration (no. 18) Declaration in relation to

the delimitation of competences refers. It is however not obvious that the situation has been absolutely

clarified.

Rapporteurs are invited to respond to the following questions.

I-8. Has the specialist scholarship of your country modified its analyses concerning the exclusive competences

and preemption after the entry into force of the Treaty of Lisbon?

In this area, there are at least two questions that merit being expanded upon. By scholarship, I essentially

mean here literature and handbooks of Community law and EU law.

Firstly, what were the traditional positions of scholarship concerning exclusive competences and

preemption? In particular, did scholarship consider that the exercise of a competence in the context of

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the internal market would transform it into an exclusive competence of the Community? Has the analysis

been modified following the European Convention of 2002-2003 or the entry into force of the Treaty of

Lisbon? Is the formulation of the domains of exclusive competence in Article 3 para. 1 TFEU accepted

without criticisms, in particular for points (b) (the establishing of the competition rules necessary for

the functioning of the internal market) and (d) (the conservation of marine biological resources under

the common fisheries policy)?

Secondly, since the Treaty of Lisbon has been in force, what are the consequences deduced by scholarship

from the fact that a competence is exclusive or that preemption has been exercised for a shared competence?

In particular, while it is clear that Member States do not have the right to legislate in a field of exclusive

competence (subject to the exceptions specified by Art. 2 TFEU), what is the case with the fields of shared

competences? Has there been an impact of preemption beyond the strictly limited field of legislative acts

adopted by the EU? And does it remain possible for Member States to legislate in this strictly delimited field,

provided that the national provisions are not contrary to the provisions of the relevant acts of the European

Union? Does scholarship distinguish between the effects of preemption by a regulation, by a directive or by

a decision pursuant to Article 288 TFEU?

I-9. The practice in terms of exclusive competences and preemption after the  entry into force of the Treaty of

Lisbon

Have there been cases where your Member State has been authorized by the European Union to legislate

within a field of exclusive competence? What is the practice in terms of Member State implementation of

acts of the European Union adopted in the fields of exclusive competence of the EU? It is useful to specify

the period in question for each example given.

What is the standard or most frequent practice in terms of transposition of directives: transposition by a specific

act of national law? Transposition within an act of national law which regulates questions other than those of

the directive to be transposed?

Is there a standard, or most frequent practice, in terms of implementation of regulations?

Same question for decisions pursuant to Article 288 TFEU.

I-10. The reactions to the Pringle ruling

The judgment of the CJEU of 27 November 2012 in the Pringle case, C-370/12, is first and foremost

particularly important for the issue of exclusive competences and preemption after the entry into force of

the Treaty of Lisbon. From this point of view what have been the reactions to the Pringle case law of

institutions, courts and of scholarship in your state?

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A second issue is that of the distinction between monetary policy, an exclusive competence of the European

Union, and the coordination of economic policies of the Member States, a shared competence. Are there

divergences of points of view in connection with the position of the Court in its judgment of 27 November

2012? What is the state of the debate concerning monetary policy and economic policy? Have

the submissions of the Advocate General and the judgment of the Court in the Gauweiler case C-62/14 (not

yet adopted at the time of drafting this questionnaire) changed the analyses of scholarship?

A third issue of the Pringle judgment is that of Article 136 para. 3 TFEU, concerning which the Court has

shown that it was not necessary to be adopted by the Member States of the Treaty Establishing the European

Stability Mechanism. The revision of the TFEU entered into force on 1st May 2013, after the election of

a new President of the Czech Republic and this after the entry into force of the ESM treaty: has there been

a reflection in your country on the question of knowing whether the entry into force of this provision

has changed the situation in relation to the substantive law applicable at the time of the Pringle judgment?

In particular, is it considered that now Member States implement a shared competence of economic policy

when beforehand they acted in an autonomous manner in the field of application of EU law? Are other

actions having as their basis Article 136 para. 3 envisaged in scholarship or in practice?

1.3 Implicit competences

The issue of implicit competences has been somewhat changed with the entry into force of the Treaty of

Lisbon. The codification of the AETR jurisprudence (Judgment of 31 March 1971, Commission v. Council,

Case 22-70) by Article 3 para. 2 TFEU reduces the extent of the fields where the theory of implicit

competences applies. The formulation of the principle of conferral might lead non-specialists to think that

the theory of implicit competences might no longer apply.

I-11. Has the entry into force of the Treaty of Lisbon changed the perception of the doctrine of implicit

competences in your country?

How is the doctrine of implicit competences presented in your country? Are there indications in legal

scholarship, in institutional and political practice or in the jurisprudence which infer that the Treaty of Lisbon

has brought an end to the applicability of the doctrine of implicit competences as developed by the CJEU, or

reduces the scope if its application in a significant manner? It is useful not only to distinguish between legal

scholarship and politicians’ declarations, but also between the specialist scholarship of Community law and

EU law, and scholarship of other branches of law. It is also useful to indicate whether the  legal scholarship,

institutional practice and policy or the jurisprudence is either rather hostile or rather favourable to

the doctrine of implicit competences.

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I-12. What is the position of scholarship in your country with regard to Article 3 para. 2 TFEU?

Are there a contrario interpretations of this provision in scholarship, practice or jurisprudence, which infer

that since the entry into force of the Treaty of Lisbon, the doctrine of implicit competences is no longer

applicable in terms of external agreements in particular, or more generally to all other domains covered in

the treaties? (It is possible that this question has already been dealt with in response to the previous

question.)

Is there scholarly criticism with regard to the drafting of this provision? It is useful to take into account not

only the literature subsequent to the adoption of the Treaty of Lisbon, but also the literature starting with

the European Convention of 2002-2003.

I-13. Is the flexibility clause of Article 352 TFEU considered as an expression of the doctrine of implicit competences?

A not negligible part of scholarship as well as numerous politicians’ declaration suggest that the flexibility

clause of the EC Treaty has been used to extend the competences of the European Community, notably

through the adoption of an environment policy and a regional policy prior to the Single European Act.

How does scholarship in your country traditionally formulate the analysis of the flexibility clause? If

scholarship considers that the flexibility clause has been utilized to extend the competences of

the Community, does it give concrete examples in this regard? Does it make a distinction regarding

the period preceding the adoption of the Single European Act, and that following it? Have the adoption of

the Constitutional Treaty and/or the entry into force of the Treaty of Lisbon led to modifying these analyses?

2 The current division of competences between the European Union and the Member States

The division of competences between the Union and the Member States is a recurring political theme since at

least the middle of the 1980’s, and it has been the subject of political declarations, documents of gray

literature (parliamentary reports, reports ordered by different national institutions) and private documents

(of think tanks, associations, etc.), which either request the reduction of competences of the European

Union (“re-nationalization”), or the conferral of new powers to it. One of the leitmotifs of the requests for re-

nationalization is the continuous extension of the European Union’s competences; it is however in general

not clear if this extension is assigned to revisions of the instituting treaties, to the legislative activity of

the European Union, the activity of the Commission in its oversight on Member States and in the execution

of policies, to the jurisprudence of the Court of Justice, or to other factors. Amongst other, it seems that an

important part of the criticism is due to an absence of knowledge about the necessity for a legal basis for

EU actions and about institutional practice. Following the entry into force of the Treaty of Lisbon, the debate

has again grown on the political map, in particular with the repeated announcements of the Government of

the United Kingdom regarding a renegotiation of the relations of this country with the European Union.

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2.1 The concept of legal basis

The concept of legal basis is fundamental for the implementation of EU competences. However, scholarship

of Community and EU law is mainly based upon the jurisprudence and thus focuses on difficulties which are

important, but perhaps quantitatively marginal in relation to the general practice of EU institutions.

The scholarship in political science only discovered about ten years ago the concept of legal basis and its

importance for the development of common policies. It seems that a number of non-specialist lawyers do not

know or do not understand the concept of legal basis in EU law or largely underestimate its importance in

practice. It would also be interesting to know if there are important differences between one country of

the European Union and another with regard to the knowledge and understanding of this concept by

administrative offices and advisers of members of governments and of parliamentary assemblies involved in

the participation of your country in the decision-making processes of the European Union.

Rapporteurs are invited to respond to the following questions.

II-1. How is the concept of legal basis in EU law understood and presented in your country?

It would be useful to indicate what the place dedicated to the concept of legal basis is in EU law textbooks

and literature in your country and what the issues are that are dealt with there. In particular, does

the scholarship of European Union law make reference to the legal bases of acts of the EU when it comments

on them or when it comments on the jurisprudence of the Court? If possible, indications concerning

the knowledge of the concept of legal basis in the jurisprudence of your country’s courts would be useful.

Where applicable, indications concerning the scholarship of political science of your country relative to

the concept of legal basis would be interesting.

II-2. What is the institutional practice of your country concerning the legal bases of EU acts?

It would be useful to indicate if the positions of your government in the context of the works of Coreper and

the Council’s working groups are more or less systematically aimed at the legal basis of the acts of

the European Union. It would be particularly useful to check if there have been actions for annulment by

your government based upon the absence of legal basis of an EU act. Have there been references for

preliminary rulings by your country’s courts to the Court of Justice concerning the legality of acts of

the Union, which question the validity of an act for lack of legal basis? Similarly, it is useful to verify

whether parliamentary assemblies examine the legal basis of acts of the EU in the context of the subsidiarity

control procedure or in other contexts where they take a position. Where applicable, if there are debates

within your country’s institutions, between different levels of government or between different

administrations of the same level, it would be important to present them.

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2.2 Request for changes in the balance of competences

Requests for changes in the division of competences between the European Union and Member States, both

to reduce and to increase them, are numerous and recurring. The question should allow the General

Rapporteur to establish a typology of the subject and origin of these requests for change.

II-3. What are the themes and who are the authors of requests aimed at modifying the competences of

the European Union?

The analysis should concentrate on the current period, i.e. subsequent to the entry into force of the Treaty of

Lisbon. Brief indications concerning the traditional or, on the contrary, new character of these requests might

be useful. It is desirable to distinguish between on the one hand requests presented by the  institutions of your

country, by specifying which institutions are the originators of the requests (government, Parliament, others)

and whether it concerns demands formalized in an official document, and on the other hand requests

expressed in a discourse or taking a stance, and on what occasion the demands were made. It is also useful to

indicate whether this type of requests was present in the electoral campaign for the European Parliament

election of 2014 and on the part of which parties. Examples are welcome, as are lists of the fields for which

there are requests for the repatriation of specific competences of the European Union, or requests for

the conferral of new competences to the EU. It may also be useful to indicate if there are requests for

repatriation of competences which do not belong to the European Union, or conversely if there are requests

for conferral of new competences which the EU already holds.

2.3 Assessment of the balance of competences

The Government of the United Kingdom has recently proceed to examine the balance of competences (Review of

the Balance of Competences between the United Kingdom and the European Union

https://www.gov.uk/government/publications/review-of-the-balance-of-competences). In June 2013,

the Government of the Netherlands also published the results of a “subsidiarity review”.

(http://www.government.nl/news/2013/06/21/european-where-necessary-national-where-possible.html).

The following two questions should particularly allow the General Rapporteur to prepare a typology of

the manner in which the balance of competences is assessed in the different countries of the EU.

II-4. In your country, has there recently been a review of the balance of competences in the Union?

It is necessary to indicate whether this is an official work executed at the  request of the government or of

Parliament, what the conclusions are, and what methodology was used. In the absence of such an official

examination, it may be useful to indicate whether such works have been executed by think tanks, by

universities, or by private associations or groups.

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II-5. What is the political and scholarly reaction to such reviews of the balance of competences of the European

Union?

Have the legal scholarship of your country participated in such work? Have they commented on the results

and methodology? It is particularly useful to specify whether the sponsor (government, Parliament, etc.) of

such work has published them even if it distances itself from the political position of the results and/or

comments on them. It is also useful to try to indicate what the impact of such work is on the public.

3 Sharing of competences and executive federalism

The system of sharing of competences between the institutions, bodies and agencies of the Union on one

part, and the authorities of Member States on the other requires a distinction between the exercise of

legislative competences and executive competences. The European Union in fact practices an executive

federalism (Vollzugsföderalismus, to take up the concept of German law) based on a dissociation between

the exercise of these two types of competences, similarly to the tradition Germany, as distinct from, for

instance, the system of the United States of America, where the execution of federal legislation (acts of

Congress) is as a matter of principle a competence of the federal executive, i.e. the President of the United

States as well as of the agencies which depend directly on him or which have been established by Congress.

The system of executive federalism of the EU involves several issues which will be explored on the basis of

the questionnaire, and which concern both the understanding of the system and the practice in terms of

the exercise of executive competences by the institutions, offices and agencies of the Union and by

the authorities of Member States. A particular attention will be paid to the joint exercise of executive

competences in the context of the management of EU funds.

3.1 The conceptualization of European Union executive federalism

III-1. How is the difference between legislative competences and executive competences of the European Union

perceived and presented in your country?

It is useful to distinguish scientific scholarship and practice. Do EC and EU law textbooks devote specific

developments to the execution of EU law and to the competences of the European Union? Does a literature

of European (Union) administrative law exist in your country? Does scholarship distinguish between direct

execution/administration (by the institutions, bodies and agencies of the EU) and indirect

execution/administration (by the authorities of Member States)? What is the vocabulary used: direct/indirect

execution/administration, centralized/shared execution/administration (on the basis of the vocabulary of the

EU Financial Regulations)? Other terms? Does scholarship utilize the concept of or the words multi-level

system/governance in relation to the competences of execution? If yes, does scholarship simply pick up

the vocabulary of political science or does it properly exert itself to draw out the specifically legal issues of

this multi-level governance?

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Does scholarship distinguish between normative execution and application of normative acts of the European

Union? If yes, did it do so prior to the entry into force of the Treaty of Lisbon, or upon the basis of Articles

290 and 291 TFEU?

Does scholarship distinguish between competences of execution in the true sense and competences of

oversight? (As reflected in Article 17 TEU, which grants to the Commission the function of oversight:

“The Commission (...) shall ensure the application of the Treaties, and of measures adopted by

the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court

of Justice of the European Union” and the proper function of execution, i.e. “it shall execute the budget and

manage programmes. It shall exercise coordinating, executive and management functions, as laid down

in the Treaties. With the exception of the common foreign and security policy, and other cases provided for

in the Treaties, it shall ensure the Union’s external representation.”

Beyond scholarship, it would be useful, if possible, to have indications concerning the manner in which

the system of executive federalism of the European Union is perceived and understood, primarily by

administration and politicians.

III-2. How is the doctrine of procedural autonomy of Member States perceived and presented?

It is useful in the first place to check if your country’s literature of EC/EU law analyses the doctrine of

procedural autonomy only in relation to judicial procedure or also in relation to administrative procedure and

the organization of the Member State’s public institutions. On the whole, is scholarship conscious of

the inseparable link between procedural and organizational autonomy of the Member States of the Union and

the principle of conferral? In particular, does it emerge from scholarship that it is the Member States that

confer competences to the Union and not the other way around? Does scholarship in this area make reference

to the sentence that is repeated at Articles 4 and 5 TEU as well as in Declaration no. 18 according to which

“competences not conferred upon the Union in the Treaties remain with the Member States”? Does

scholarship distinguish between, on the one hand, the general principle according to which the Member

States are free to exercise as they choose their competence in terms of organization and of procedures of

execution subject to respecting the general principles of European Union law and, on the other hand,

the different pieces of sectoral legislation, where the legislator of the European Union sometimes goes very

far in prescribing the procedures and organizational forms of the execution of EU law?

If we admit that the doctrine of procedural autonomy refers to the jurisprudence of the Court of Justice

concerning the limits of this autonomy, it is useful to verify whether the presentation of the principles of

equivalence and effectiveness, which are at the heart of this jurisprudence, is made with the study of

competences of execution. What is the position of scholarship with regard to this jurisprudence?

If it is particularly critical, how does it express these criticisms? If its attitude is rather positive to this

jurisprudence, how does it explain the fundamental principles?

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Secondly, it is useful to check whether the public institutions of your country – government, administration,

parliamentary assemblies – implicitly refer to procedural and organizational autonomy. In this regard,

are there documents of the government or parliamentary assemblies? What is the contribution of the courts

of your country to the definition of the limits of procedural autonomy? In order to respond to this question,

it would be useful to analyse the references for preliminary rulings made by the courts of your country whose

purpose was to ask the Court what the limits of procedural autonomy are, by distinguishing between

the autonomy of the administration on one hand, and the courts’ own procedural autonomy on the other

hand.

3.2 The legal problems of the practice related to executive federalism

The system of European Union executive federalism generates a legal issue that we can summarize as thus:

whilst in the case of direct execution/administration, only EU law applies normally (if we disregard the use

of contracts for the execution of EU policies), and only the institutions of the EU are competent for execution

itself as well as for judicial review (by the Court of Justice and the Court of Auditors) and non- judicial

review of the execution (notably by the European Ombudsman and the European Data Protection Supervisor,

as well as OLAF, the European Anti-fraud Office), conversely in the case of indirect or shared execution,

the law of the EU and the relevant law of the Member State apply, and the judicial review is exercised both

by the competent courts of the Member State and by the Court of Justice (in the context of the infringement

proceedings and references for preliminary rulings) and the Court of Auditors (where the execution entails

the utilization of European Union funds ), and the non-judicial review is exercised firstly by the Commission

in the context of its oversight functions, as well as by the competent organizations of Member States.

The legal context of the indirect or shared execution is thus by nature complex and apt to generate problems

due to contradictions between applicable laws and procedures and above all to lacunae (such as the  one

illustrated by the decision of the Court of Justice of the 3 December 1992 in Oleificio Borelli v. Commission,

case C-97/91).

III-3. In your country, is there an organizational structure and/or specific procedures to aid the administrations to

resolve the legal problems inherent to the indirect or shared execution of the law of the European Union?

You should check whether there are circulars or administrative documents intended to explain to

the administrations what the legal parameters are that they must take into account in the execution of EU

policies, and/or whether the central or decentralized administrative structures which deal with the policies of

the European Union possess a specialized staff and are endowed with procedures permitting them to aid

the administrations in their action.

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III-4. In your country, are there specific legal problems in the indirect or shared execution of the law of

the European Union?

In particular it is a question of checking to what extent the courts of your country are conscious of the necessity

to apply at the same time the law of the EU and internal law to review administrative action in the execution of

EU law, and whether there are difficulties in applying the doctrines of direct applicability and primacy. Such a

verification, in the absence of pre-existing studies, could be done on the basis of a study of the jurisprudence of

your country’s supreme courts (in particular administrative courts). On the other hand it would be useful to

verify whether the references for preliminary ruling in interpretation made in the context of judicial review of

the administrative execution of the law of the European Union reveal situations in which private individuals are

deprived of complete legal protection as a result of lacunae in the legal system (as in the Oleificio Borelli case).

It could also be useful to analyze the documents produced by the ombudsmen, particularly in the context of

the European Network of Ombudsmen, to check whether they contain useful information for your country

(http://www.ombudsman.europa.eu/en/activities/network.faces).

III-5. What is the attitude in your country to the establishment at Union level of principles and rules of

administrative procedure required to be applied to the execution of the European Union’s policies?

A first issue to be explored is that of sectoral policy acts (directives, regulations or decisions) containing

provisions in terms of procedure of application of EU law (for example impact assessment procedures) or in

organizational terms (for example the necessity of establishing an independent organization). Are such sectoral

instruments considered as positive, either because they permit a uniform application of EU law in the different

Member States, or because they help national administrations in their tasks of executing the law of the Union? Or,

in contrast, are they considered as too invasive? It would be useful to distinguish between ²scholarship and

the documents of administrations and where applicable of other public institutions (parliamentary assemblies,

ombudsman, etc.). It might be useful to verify how the relevant jurisprudence of the Court of Justice is assessed.

A second issue is that of a general codification of the administrative procedure. The European Parliament, by

a resolution of 15 January 2013, invited the Commission to make proposals of a legislative nature for

the adoption of a Regulation concerning the administrative procedure of the European Union (European

Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative

Procedure of the European Union (2012/2024(INL)) see http://www.europarl.europa.eu/sides/getDoc.do?

pubRef=-//EP//TEXT+TA+P7-TA-2013-0004+0+DOC+XML+V0//EN ); this resolution is limited to

the procedure applicable by the institutions, bodies offices and agencies of the European Union. In your

country, is there a scholarly or official position relative to the codification of the administrative procedure of

the European Union? If yes, are there positions on the legal basis for such a codification? Are these positions

favourable to a limitation of such a codification to the procedure applicable by the institutions, bodies offices

and agencies of the European Union, or are they in favour of a more general codification, applicable also to

the national administrations in the implementation of EU law?

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3.3 The joint management of EU funds and in particular the Structural Funds

The joint management of EU funds and notably of the Structural Funds poses particularly important

problems in terms of division of competences between the EU and its Member States; this is why they are

examined in the context of this topic, in accordance with the mandate given by FIDE to the General

Rapporteur. On the other side, the practical problems posed by the management of funds by the Commission

or the other institutions, bodies offices and agencies of the European Union will not be examined, nor will

the problems posed by the joint management of the European Union and intergovernmental organizations

(such as for example the SIGMA initiative of the EU and the OECD). The specific legal problems at

the level of Member States are on the one hand problems relative to the division of planning and execution

competences between the Commission and authorities of Member States and on the other hand problems of

financial regularity.

III-6. In your country, how does the division of planning and execution competences work for operations financed

by EU funds, in particular the Structural Funds, function?

Is there a specific organizational structure for the management of Structural Funds or other EU funds at

national level or at regional or local level? How is the procedure for planning and execution of Structural

Funds or of other funds assessed? If there are no studies of public organizations, of think tanks or of legal

scholarship or of political science concerning the management of Structural Funds in your country, some

brief indications concerning the reasons for this absence are welcome. This question is connected to question

III-5.

III-7. In your country, is there specific jurisprudence relative to the management of Union funds, in particular

Structural Funds?

You should check in the first place whether there are any references for preliminary rulings in the context of

the management of the Structural or other funds. In the second place, if possible, a typology of

the jurisprudence of the courts of your country in the context of the management of the funds coming from

the EU, in particular from Structural Funds, would be useful, and in particular if it reveals problems relative

to the division of competences between the EU and national authorities.

III-8. How does the cooperation between the Court of Auditors of the European Union and the corresponding

organizations of your country function?

It is useful to analyse the pertinent documents produced by the Court of Auditors of the Union and by

the corresponding organizations of your country, in particular in the context of the International Organization

of Supreme Audit Institutions (INTOSAI – http://www.intosai.org/en/news.html).

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III-9. If you wish to do so, present other relevant examples of shared management which reveal problems of

division of competences between the EU and its Member States.

This question is particularly important for countries for which Structural Funds have a smaller importance.

Thank you for your cooperation.

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