CLEER WP 2011/6 - Klamert
New conferral or old confusion? – The perils of making implied competences explicit and the example of the external competence for environmental policy
Articles 3(2) and 216(1) TFEU on the external competences of the Union adopt highly complex and partly controversial case law of the European Court of Justice. This paper argues that these provisions do not give a complete and clear picture of external competences of the Union. When clarity, conferral and containment are considered major forces having driven the reform process resulting in the mentioned Treaty provisions, this paper will show that the Lisbon Treaty failed on all these counts. Neither will the new provisions remove the need to resort to pre-Lisbon case law for guidance on key principles of external exclusive competence, nor do these provisions answer the question on the scope and the conditions of shared external powers of the Union. This paper argues that competence does not only exist ‘where the Treaties so provide’, as it is put by Article 216(1) TFEU, which instead should be interpreted to reflect the case law of the Court before Lisbon on implied shared external competence, requiring a test of facilitation for their exercise. The relationship between Articles 191 and 192 TFEU on environmental policy is discussed to illustrate the mystification bedevilling the regime on external competences in Union law. While the Court in recent case law claims that there is an explicit conferral of shared external power in Article 192 TFEU and the Union legislature regularly relies on this provision as the basis for concluding international agreements in the field of environment, nowhere in Article 192 TFEU is there any mention of international agreements or a reference to the procedure under Article 218 TFEU. It is argued that this further confirms the continued existence of implied shared competences in Union law. This, however, also shows that key issues on the distribution of competences between the Union and the Member States have not been addressed by the Lisbon Treaty.