Competences-reloaded? The vertical division of powers in the EU and the new European constitution

摘要

The convention clearly adopted a restricted understanding of competence as legislative competence. Even the limited field of legislation was not fully explored, since part Ⅲ of the constitution, which includes the competence provisions from the former treaties, was not debated in depth. This is unfortunate. The actual competence provisions are laid down in part Ⅲ. A serious political debate on some of the issues of part Ⅲ, such as the reach of fundamental freedoms (art. Ⅲ-154, currently art. 30 EC) or common commercial policy (art. Ⅲ-315), would have been helpful. Still, all things considered, the result of the convention's work is an improvement over the previous situation. Given the nature of the European construct as a constitutionalized multilevel system without strong hierarchies, it seems to me that what is best suited to the European situation are tools and mechanisms that emphasize political safeguards to protect affected interest. This suggests "soft" procedures, that is to say, mechanisms aimed at raising sustainable sensitivity on competence issues. The work of the convention seems to have been inspired by a similar understanding of the issue, given that it refrained from a major modification of the existing competence order or the creation of new institutions. Instead, it relied on the early-warning system and reporting mechanisms, which will have to pass a practicability test.