The common language of 'competence': or how rediscovering the often-overlooked distinction between competence and power leads to better legal reasoning on whether the European Union may act

Thesis

Ever since the European Coal and Steel Community, the principle of conferral has governed Community and Union action. The European Union may only act if, and insofar as, the Member States have authorised it to do so in the Treaties. To act, the Union needs ‘competence’. What that concept means, however, is not always sufficiently clear. And that is a problem. ‘Competence’ is crucial. But it does not yet convey the same ideas in all actors. Through a thorough analysis of primary and secondary Union and Community law, their preparatory documents, and case law of the Court, this DPhil aims to change that. It argues that ‘competence’ is about more than competence alone. There is also power. Competence is the field in which the Union may act. Power is the EU’s institutions’ actual authorisation to act. To fall within a certain field of competence, a measure must pursue the objectives of that competence and relate to its subject matter. Those are the two dimensions of competence. Power, too, has two dimensions. It determines which legal instrument may be adopted through which type of legal act. There are also power modalities. They relate to the procedural side of the exercise of power: which EU institution(s) may act and through which voting majority. Together, these concepts form the common language of ‘competence’. This conceptual nuance always existed in Community and Union law. Bringing it forward is desirable. Questions of ‘competence’ arise whenever the EU prepares to act. It is important that they can be answered with nuance and precision, and in a legal language which is understood by all participants in the debate. That is what this DPhil is about.

Authors: Bogaert, H

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: principle of conferral; competence; power; European Union; law
• Subjects: European Union Law