“Thus the important thing is to clarify, simplify and adjust the division of competence between the Union and the Member States in the light of the new challenges facing the Union.” With these words the declaration of the European Council of Laeken points out one of the most crucial issues of the Convention. Nevertheless the question arises why there is a need to change the current system of competences.

One of the most frequent criticisms about the EU is definitely its lack of transparency. The normal citizen has no real overview of which task is fulfilled at which level. The current system of competence is a product of negotiations and package-deals between the governments. Thus there is no clear and coherent system behind it.

Secondly the open and aim-orientated norms are open for many interpretations. In the past many competences ruled on the regional or national level have been claimed with reference to these norms. The principle of subsiarity has not proved its efficiency in these cases, while open and fluid itself.

Therefore a new system should provide better clarity and accountability. A change from aims into real policy-issues implies the creation of a certain list of competences. In this case some options are available. Experiences with existing catalogues of competence show their possibilities and risks. A catalogue that only enumerates the competences of one level, like the German model, can lead to the transfer of competences of the other levels because of the argumental support of the listed competences. This is avoided with a radical division of competences, like the USA tried to achieve until the 1930s. Their failure showed that in the modern and complex world a complete separation of issues is impossible. The creation of a catalogue of negative competences reserved to lower levels could lead to weaken the European level. Another option would be a bipolar charter of competences that enumerates both the competences of the EU and the member states. From the perspective of clarity and transparency, no other system can cope with this.

To avoid a situation where related issues could not be separated, a system of differentiated intensity has been proposed, where the European legislation should be restricted to fix the frame rules, and the details should be left up to decisions at the national or regional level. Besides there should exist as well exclusive competences for the EU and the member states.

One might think that the better use of the existing principle of subsidiarity would satisfy many of the demands linked with a catalogue of competences. The openness of the text laid down in the treaty allowed no real interference based on the argument of violating the principle. The Court of Justice never had to deal with such a question. Consequently a more reliable and clear concept of subsidiarity could help to implement this principle. Nevertheless the advantages of a transparent list of competences cannot be substituted for with a clearer principle of subsidiarity.

A further question is whether the question of competences should not be left to jurisdictional decisions. Conflicts on competence are mainly conflicts on power and can therefore be judged as political questions. If one does not wish to politicise the European Court of Justice or any other court, the jurisdictional way is no real opportunity.

Instead a special body, assembling members of the European Parliaments and national Parliaments (and where they have legislative powers members of regional assemblies as well) presents another option. Only dedicated to solve conflicts on competence, this chamber would only meet if called by one entity of the Union.

The introduction of some of the above mentioned options would definitely lead to a federalisation of the EU. Systems of division of competences are characteristic for all federal systems. For sure this would mean the end of the “methode Monnet”. The new system would be much more stable and settled. To ensure that further integration can take place, the system of changing constitutional norms should be made more flexible.

It is obvious that a charter of competences cannot fulfil all expectations. Nevertheless its great advantage of providing a transparent and clear system can help to increase the support of the European citizens for a European Federation.

Florian Ziegenbalg
Member of the Federal Committee of JEF Europe and chair of Political Commission „Convention“
mailto:florian.ziegenbalg@constitutional-convention.net