Implied powers

Article 5 of the Treaty on European Union (TEU) states that European Union (EU) powers (competences) are governed by the principle of conferral, stating that ‘the EU shall act only within the limits of the competences conferred on it by the EU Member States in the Treaties to attain the objectives set out therein’.

Implied – or implicit – powers are, however, powers that have not been explicitly conferred upon the EU in the treaties but derive either from the explicitly conferred powers or the objectives of the EU.

The doctrine of implied powers has been recognised by the Court of Justice of the European Union on several occasions, such as in the European agreement on road transport case (Case 22-70), when it ruled that the EU has the right to negotiate international agreements in matters where it has competence to adopt internal rules. Thus, in addition to the competences explicitly conferred on the EU by the Member States, this doctrine gives the EU the competences necessary to achieve certain objectives of the treaties, even though the treaties have not provided for powers of action to do so.

Article 352(1) of the Treaty on the Functioning of the European Union (TFEU) sets out the basis for the use of implied power. It allows the EU to adopt measures relating to a policy or an objective defined in the treaties, but for which it has not been specifically given the powers to do so, under certain circumstances. The conditions to be met are that the Council of the European Union, having received the European Parliament’s consent, votes unanimously in favour of the appropriate measures on the basis of a proposal from the European Commission.

In the event that such measures are adopted by the Council in accordance with a special legislative procedure, it must also act unanimously on a proposal from the Commission and having already obtained the consent of the European Parliament. The Commission is required to draw the attention of Member States’ parliaments to any proposals it issues based on Article 352 TFEU.

Article 352 TFEU may not be used as a basis for measures that entail harmonisation of national laws or for regulations where the EU treaties exclude such harmonisation, nor may it serve as a basis for attaining objectives relating to the common foreign and security policy. All acts adopted using Article 352 TFEU as a basis must respect the limits set out in Article 40(2) TEU.