II.2.2 Categories of Competences

'When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the member states being able to do so themselves only if so empowered by the Union for the implementation of Union acts' (Art. I-12 Par. 1 TCE). This exclusive category was de facto introduced by a decision of the European Court of Justice (ECJ) in 1971 - the so called AETR-Doctrin. It has been applied to rules of competition and external trade so far, being codified in 'primary law', and was extended to Customs Union, common trade policies, among others, by the Constitutional Treaty (Art. I-13 TCE). An in-depth analysis of these specific policy areas will come to the conclusion that even this clear-cut category of competence is not dominated by one single decision-making procedure, but various procedures are applied [Table]. Thus, a catalogue of competences has not been established with regard to the exclusive competences - the principle of conferral (Art. I-11 and I-12 TCE) remains the mode of procedure instead.

'When the Constitution confers on the Union a competence shared with the member states in a specific area, the Union and the member states may legislate and adopt legally binding acts in that area. The member states shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence' (Art. I-12 Par. 2 TCE). The according policy areas are negatively defined by stating that a Union´s competence is shared with member states whenever the treaty confers neither an exclusive competence nor supportive measures on the Union (Art. I-14 TCE). This indicates that the definition of this category is not comprehensive, but restricted to some main areas of shared competences such as policies of agricultur, internal market, environment, just to list a few. The attribution of competences differs widely between these main policy areas. The complexity is even increased by the fact that the principle of pre-emption does not apply in all of such areas (development policies). Recapulating it can be stated that the definition lacks discriminatory power.

'In certain areas and under the conditions laid down in the Constitution, the Union shall have to carry out actions to support, coordinate or supplement the actions of the member states, without thereby superseding their competence in these areas' (Art. I-12 Par. 5 TCE). This category is mainly characterised by the lack of the Union´s right of legal harmonization. The definition of the areas concerned (Art. I-17 TCE), industrial and health policies included, indicate the overlapping with areas of the category of competence shared with member states.

When comparing selected areas, the procedures apparantly show varying degrees of variation even within the five realms of exclusive competence (plus the "area of freedom, security and justice"). The specifics of different policy areas, coupled with existing traditional provisions, meant that the Convention could not consistently install a fully unified procedure, and further, the specified policy field does not determine clearly the relevant procedure.

Such distinctions are not uncommon in national constitutions either, and it is only to be expected that procedures of decision making not always be identical: there are intrinsic differences between monetary interventions by a central bank, a legislative act concerning environmental protection or activities by a foreign ministry to deal with human rights violations in third states. Nonetheless, even when bearing in mind such distinctions as conditioned by the policy field, the degree of procedural differentiation in the Union remains high.